Florida appellate court to hear Turtles' appeal

The Florida Supreme Court will hear arguments beginning on April 6th in the copyright-infringement lawsuit filed by founding members of the 1960s rock group the Turtles against SiriusXM satellite radio.

Flo & Eddie Inc., the California-based company whose principals are Turtles vocalists Mark Volman and Howard Kaylan, filed the lawsuit in 2013 alleging copyright infringement involving music made prior to 1972. Flo & Eddie have won suits against SiriusXM in California and New York (the later subsequently over turned) but a federal district court judge in Florida sided in 2015 with the satellite broadcaster, finding nothing in Florida statutes or common law dealt with copyrights of recordings made before 1972 (and the federal Copyright Act).

Judge Darrin Gayle said that "Florida is different"  (from New York and California) saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." Declining to fill the void in the state's legislation the Judge said "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right.

The case went to the 11th U.S. Circuit Court of Appeals, which asked the Florida Supreme Court to take up the issues involving state law. 

In December 2016, a majority in New York's highest court ruled that Sirius XM did not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks in the case brought by the owners of The Turtle's 1967 hit "Happy Together."  The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio. The Court of Appeals' ruling comes in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired in April whether New York's common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius' motion for summary judgment in 2014, finding that New York common law did provide a public-right performance 

That ruling came ust weeks after a settlement between the Turtles members and SiriusXM in a related lawsuit in California. U.S. District Judge Phillip Gutierrez ruled against SiriusXM in 2014, holding that California state law, as it is written, gives the master recording owner exclusive performance rights.

http://www.newsherald.com/news/20170201/supreme-court-to-hear-turtles-copyright-case

http://the1709blog.blogspot.co.uk/2016/12/sirius-xm-triumph-in-new-york-appellate.html

http://the1709blog.blogspot.co.uk/2015/06/siriusxm-prevail-in-pre-1972-claim-in.html

Sirius XM triumph in New York appellate court

New York's highest court has ruled that Sirius XM does not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks in the case brought by the owners of The Turtle's 1967 hit "Happy Together." 

The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio. The Court of Appeals' ruling comes in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired in April whether New York's common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius' motion for summary judgment in 2014, finding that New York common law did provide a public-right performance 

The ruling comes just weeks after a settlement between the Turtles members and SiriusXM in a related lawsuit in California. That settlement, which also covers class action claims on behalf of other performers, called for payouts of up to $99 million (an amount that is likely to be reduced as a result of  this ruling). U.S. District Judge Phillip Gutierrez ruled against SiriusXM in 2014, holding that California state law, as it is written, gives the master recording owner exclusive performance rights.

In Florida a court found that there was no state law to protect pre-1972 recorded works.  U.S. District Judge Darrin Gayles ruled in favour of SiriusXM's saying he understood why his judicial colleagues in other states ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, but that there was no legislation or case law supporting such a property right in Florida and nor would he create one saying that it must be the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. 

In a similar approach, the New York Court of Appeals (in a split 4-2 decision) said that whilst it understood the anomalies in copyright laws, it should be up to Congress to define the public performance rights sought by creators of the Turtles' music, as it did for post-1972 recordings under the federal Copyright Act of 1976.

Judge Leslie Stein for the majority noted that the digital age, satellite technology and now the internet had allowed subscription music on-demand services such as Sirius to become lucrative and this has distorted the previous "symbiotic" relationship between artists and broadcasters, where it was advantageous to both sides to play music recordings publicly saying for the majority:

"Indeed, it would be illogical to conclude that the right of public performance would have existed for decades without the courts recognizing such a right as a matter of state common law, and in the absence of any artist or record company attempting to enforce that right in this state until now […]. Simply stated, New York’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. Even the District Court here, while finding the existence of a common-law copyright of public performance in sound recordings, acknowledged that such a right was “unprecedented,” would upset settled expectations, and would “have significant economic consequences” … Under these circumstances, the recognition of such a right should be left to the legislature."

Stein was joined by Judges Eugene Pigott Jr., Eugene Fahey and Michael Garcia.

Judge Jenny Rivera wrote in a dissent that the common-law right of public performance in New York has always been recognised as a "broad and flexible" one that the court should now extend to the pre-1972 sound recordings in the new age of satellite broadcasting saying 

"I reject a parochialism that justifies turning a blind eye to the exploitative practices of today's music industry made possible by technological advances and that, as a consequence, excludes from our common-law copyright in sound recordings a quintessential property interest in the use of these works," 

Judge Sheila Abdus-Salaam joined in Judge Rivera's dissent. Chief Judge Janet DiFiore took no part in the decision.

However Judge Fahey wrote a concurring opinion in which he said he believed that the common-law right of public performance should apply to the on-demand services sold by Apple Music, Spotify, Rhapsody and Amazon's Music Unlimited where consumers hear one song at a time from massive catalogues without downloading the individual songs, as listeners can through iTunes. Fahey said, in his view, pre-1972 public performances are protected in such on-demand "rental or lease" use of the songs.

In a related but separate matter, Capitol Records (now part of the Universal Music Group) has said it will appeal to the Supreme Court of the United States to answer the questoin of whether 'safe harbor' provisions brought in by the Digital Millennium Copyright Act should apply to pre-1972 sound recordings. In June the Second Circuit court ruled in favour of the Vimeo, saying that exempting older recordings from the safe harbour principle would “defeat the very purpose Congress sought to achieve in passing [it]”. The Second Circuit then refused to rehear the case in August and now Capitol has filed papers with the Supreme Court. arguing that “Section 301(c) of the Copyright Act explicitly protects state law remedies for infringement of pre-72 sound recordings until February 2067”.

http://www.newyorklawjournal.com/this-weeks-news/id=1202775173003/Court-Rules-That-NY-Common-Law-Does-Not-Protect-Pre1972-Sound-Recordings?mcode=1202615036097&curindex=4

http://www.rollingstone.com/music/news/siriusxm-settles-turtles-copyright-lawsuit-for-99-million-w452890

http://fortune.com/2016/12/20/siriusxm-turtles-appeal/

http://www.completemusicupdate.com/article/capitol-takes-safe-harbour-on-pre-1972-recordings-case-to-supreme-court/

http://the1709blog.blogspot.co.uk/2014/09/1972-and-all-that-but-does-turtles-win.html

http://the1709blog.blogspot.co.uk/2015/06/siriusxm-prevail-in-pre-1972-claim-in.html

http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html

The CopyKat - topical treats from the world of copyright

Music publisher Warner/Chappell has filed papers indicating the settlement terms in the 'Happy Birthday' case - and has agreed to pay $14m to  to a class of “thousands of people and entities” who had paid licensing fees to use the song since 1949 and to end the lawsuit that challenged its copyright to Happy Birthday To You – possibly the world’s most famous song. Readers will remember that back in September 2015, US district judge George H King ruled that Warner/Chappell did not own the lyrics to the song, just some of its musical arrangements. Next month, King must approve the settlement. The settlement would also grant $4.6 million in fees to the lawyers for the plaintiffs, a group of independent artists and filmmakers who filed separate suits in 2013 that were later combined. More on this case on CMU here.

Ricky Spicer, one third of The Ponderosa Twins Plus One (Spicer being the "One" after he joined up with the singing twins), has filed a law suit seeking class action status against and damages from a large cross-section of the digital music landscape that includes Spotify, Apple, Google, SoundCloud, iHeartMedia, Pandora and Sony Computer Entertainment - over royalties related to pre-1972 recordings. Spicer's action directly relates to several other ongoing cases, all related to the same complex issues of copyright ownership and music licensing - including the cases brougt by Flo and Eddie from the Turtles against Sirius XM. But interestingly the filing says the various defendants may have thought they had licensed his album - but they haven't: In the filing Spicer makes the allegation that a "phantom party... used back channels and private under-the-table dealings to transfer licenses that ultimately wound up in the hands of Defendants."

Two US publishers are having a spat over who has the right to publish the law - here the right to exclusively publish the Georgia Administrative Rules and Regulations. Legal publisher Fastcase wants a federal judge to fend off a cease-and-desist demand from rival Virginia-based Lawriter, which has been designated as the exclusive publisher of Georgia's compilation of the rules and regulations of its state agencies. Fastcase argue that the Georgia Regulations are public law published under statutory mandate and are in the public domain: "Defendant cannot claim any exclusive right in, to, or in connection with, the Georgia Regulations. Thus, Fastcase seeks declaratory judgment that Lawriter has no basis from which to prohibit Fastcase from publishing the Georgia Regulations in its subscription legal research service." The case is in the US District Court in the Atlanta Division of the Northern Division of Georgia. 

The New York Times has launched a legal action against  David Shields, the author of War Is Beautiful, a book that argues the Times systematically glamorises war by the way that it depicts armed conflicts and their aftermath. Shields licensed several dozen images for his book  - but he also included thumbnail versions of some images without clearance, and the Times claims that these reproductions violate its copyrights. One would think that Shields has a good case that the uses constitute "fair use" - not least from the US Court of Appeals for the Second Circuit in Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2d Cir. 2006) which confrimed that the use of thumbnail images of Grateful Dead posters in a coffee table book about the band was indeed faor use - but we shall see. In all events its rather good publicity for Mr Shield's book.

Whilst the copyright status of the The Diary of Anne Frank remains a topic of debate in Europe, with the Foundation that controls the copyright arguing that an edit by Anne Frank's father and later translations mean it is still protected by copyright law,  the Diary has been withdrawn from Wikisource in the US because of the longer term of copyright protection in that jurisdiction. Anne Frank died in 1945 which means that the book moved into the public domain in the Netherlands and the rest of Europe on January 1, 2016, 70 years after her death - although the Anne Frank Fonds say that this term should run from the death of Otto Frank in 1980. But in the US, Wikisource, a digital library of free texts maintained by the Wikimedia Foundation, have withdrawn the text. Their legal counsel Jacob Rogers, said the removal was the result of an overreach of U.S. copyright law but believes that they have no other option than to comply saying “Today, in an unfortunate example of the overreach of the United States’ current copyright law, the Wikimedia Foundation removed the Dutch-language text of The Diary of a Young Girl” adding  “We took this action to comply with the United States’ Digital Millennium Copyright Act (DMCA), as we believe the Diary is still under US copyright protection under the law as it is currently written”.  Wikimedia's servers fall under the U.S. jurisdiction - and wikimedia had apparently been informed that the publication of the text would violate US copyright laws.  More on TorrentFreak here.

The IPO's China IP Newsletter tells us that the State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) and the Ministry of Industry and Information Technology (MIIT) have jointly announced new regulatory measures governing online content distribution. The Regulations cover the administration of Internet platforms and require platforms to register in order to publish content online. The platforms should keep records of all uploaded works for 60 days and will be subject to annual inspections. The Regulations also include a pre-approval mechanism for publication of online games. Meanwhile, the State Council Legislative Affairs Office (SCLAO) has launched a separate consultation on Regulations on the Administration of Publication of Digital Material. The deadline for comments on the Regulations is March 10. More here and here (in Chinese).

And finally - an article on ArtsTechnica that's well worth a read: "Embattled copyright lawyer uses DMCA to remove article about himself". Its all about attorney Marc Randazza's battles to delete an online article about a dispute between his former employer and himself and who told Wordpress that the unflattering story "is not fair use." 

The CopyKat - gazing across the pond

A U.S. judge in California has allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The ruling by U.S. District Judge Philip Gutierrez marks another win for members of the 1960s band the Turtles, known for the hit "Happy Together," and means the company could face claims from a broader group of artists. "Sirius XM treats every single owner of a pre-1972 song the same, namely it doesn't pay them, so it was appropriate for this court to grant class certification," said Henry Gradstein, attorney for Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman. Sirius XM had argued against certification because it said damages would be difficult to calculate accurately for different members of the class. Gutierrez rejected that argument saying "a class action is superior to individual litigation to the fair and efficient adjudication of the present controversy." More here.

In Jamaica, The House of Representatives has started to debate amendments to the Copyright Act to strengthen legal protection for creators of intellectual property.  Investment, Industry and Commerce Minister, Anthony Hylton opened the debate on the Copyright (Amendment) Act, 2015. Among some of the proposed changes is the extension of the rights of companies to their work from 50 to 95 years. the proposed amendments also seek to provide certain exemptions that will give blind and visually impaired people greater access to copyrighted work. More from the Gleaner here.

Back in the USA, Techdirt has a fairly damning review of the actions of 'copyright troll' Malibu Media. Techdirt tells us "Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices". Much more here.

The U.S. National Music Publishers' Association (NMPA) has filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.”


And finally, US music collection society BMI has published an analysis of Judge Louis L Stanton's recent decision in the rate court which raised the royalty Pandora had to pay BMI members, noting that the ruling judge clearly stated that, even though the directly negotiated deals between publishers and broadcasters were put on hold by the courts, the "direct licenses between Pandora and Sony and Universal for the 2014 calendar year were the best benchmarks because they are the most recent indices of competitive market rates". The big publishers wanted to pull from the collective licensing system in the USA for digital rights but the courts decided their relationship with ASCAP and BMI was 'all or nothing' - all in or all out. Judge Stanton decided that Pandora, the digital radio service, must pay 2.5 percent of its revenue to BMI, which collects public performance royalties on behalf of songwriters and publishers. More from the Hollywood Reporter here.

The CopyKat - The Sky's the limit in new football deal

Sky is paying £10 million per football match in a new deal with the England's Premier League. As the market digested the £4.176bn Sky is paying over three years for 126 live matches each year it seemed that many analysts think that Sky has overpaid. Sky’s share price fell by 5%, the biggest faller in the FTSE 100. The deal is an 83% increase over the cost of the existing contract and  includes a new Friday night slot.  BT’s shares, by contrast, were up by more than 4% in early trading on Wednesday. It will pay a total of £960m compared to £738m for two packages which would include 42 games each season, which is £7.6m on a per game basis, a rise of 18%. BT will show matches on Saturday evenings and and a handful of Sunday and midweek slots. The new contract which totals £5.136 billion begins in 2016. The combined figure for the 2013-2016 seasons was £3 billion, and for the 2010-2013 seasons was £1.8 billion.

Hmmmm - maybe ..........

Andrus Nomm, a 36 year old Estonian who lives in the Netherlands, and one of a small group of ex MegaUpload staffers who are facing extradition to the US for involvement in the running of the controversial file-transfer company, has pleaded guilty to criminal copyright infringement charges and has been sentenced to a year and a day in a U.S. prison. Nomm pleaded guilty in U.S. District Court for the Eastern District of Virginia to conspiracy to commit felony copyright infringement. District Judge Liam O’Grady accepted the guilty plea and imposed the sentence. Nomm is the first defendant to face charges in the U.S. in the Department of Justice’s long-running copyright infringement case against Megaupload, and Nomm voluntarily waived his right to fight extradition. The plea is “a significant step forward in the largest criminal copyright case in U.S. history,” Assistant Attorney General Leslie Caldwell said in a statement.  Speculation remains that he had done a deal with prosecutors, and will agree to testify against his former colleagues, including Kim Dotcom. Prosecutors agreed to a light sentence for his guilty plea, the DOJ said in a press release.The DOJ has accused the operators of Megaupload of running websites that wilfully reproduced and distributed movies and other products protected by copyright. In court papers, Nomm agreed with prosecutor estimates that the cost of Megaupload’s infringement was more than $400 million. The final indictment charged the defendants with conspiracy to commit racketeering, conspiracy to commit copyright infringement and conspiracy to commit money laundering. In addition, the defendants are charged with five counts of criminal copyright infringement and five counts of wire fraud. More on PCWorld here.

A New York federal judge has agreed to certify an interlocutory appeal by SiriusXM against the ruling that gave state copyright law protection to pre-1972 sound recordings.  As a result, the 2nd Circuit will now address the legal issue that copyrights in pre-1972 sound recordings didn't cover the right to exclusive public performance - a position successfully challenged by Turtle's musicians Flo & Eddie of The Turtles who filed filed 2013 lawsuits in California, Florida and New York.

And the latest skirmish in who pays what for streaming music in the U.S. has kicked of in a court in New York. Its a legal battle over what royalties the Pandora streaming service should pay American collecting society BMI. Against the backfrop of the major publishers seeking to withdraw their rights from BMI (And ASCAP) so they can licence streaming services direct, this case concerns the terms of BMI's current licence - Pandora wants to pay 1.75% of its revenue to BMI, while the collecting society wants 2.5%. Whilst Pandora wants to maintain the status quo, somewhat oddly given the background, BMI will argue that it should be able to increase the rate from 1.75% to approach the rates the majors have achieved.

The 9th U.S. Circuit Court of Appeals has reversed a decision in a copyright lawsuit against two members of the Four Seasons and developers of the group’s Tony Award winning biographical musical “Jersey Boys.” Donna Corbello sued Frankie Valli and fellow Four Seasons band member Robert Gaudio in 2011 for copyright infringement, claiming the musical was based in part on an unpublished autobiography of Four Seasons band member Thomas DeVito that her late husband Rex Woodard ghost-wrote. Although initially registered in DeVito's sole name, Corbello amended the US copyright registration so Woodard and Devito were co-owners. She said she deserved to share in the profits from the musical's success.  The appellate court said there was contradictory evidence about whether Valli and Gaudio executed an agreement with DeVito to produce the play in time to avoid termination of their ownership rights but that “a co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright.” The case will now be sent back to Nevada federal court to determine if the musical infringes the autobiography, and Corbello is entitled to royalties from the theatre show which has run since 2005 and the Clint Eastwood film of 2014. More here and in the Hollywood Reporter here.

The CopyKat's Christmas baubles

The attorneys representing Sirius XM Radio Inc. in the potentially industry-shaking copyright litigation about pre-1972 sound recordings, O'Melveny & Myers, have been rapped by District Judge Colleen McMahon in Manhattan who has now ruled that she hadn't erred when she failed to apply the 1940 case of RCA Manufacturing v. Whiteman in concluding last month that Sirius must pay royalties to broadcast pre-1972 records - telling the lawyers that their newly-cited precedent had been overruled 60 years ago.  "The only clear error in this case is O'Melveny's" Judge Colleen McMahon wrote - telling the  lawfirm that they had "deliberately missing the point" and "doing nothing but raise red herrings" since making its initial appearance in the case in November. The ruling stems from a lawsuit in which the two founding members of the 1960s rock band The Turtles allege that Sirius infringed on the group's rights under state law by playing its tracks without permission. Federal copyright law doesn't govern sound recordings made prior to 1972, and Sirius has argued in its defence that New York law also doesn't cover performance rights for pre-1972 sound recordings.

The IPKat reports that the Centre Pompidou in Paris is now showing a retrospective of Jeff Koons’ work. Among them is  Fait d’Hiver, a porcelain sculpture representing a pig looking at the torso of a woman lying in the snow (above left). The woman is rather scantily dressed as her bare chest is visible through her fishnet top. Her body has been cut below her breasts, along with her left hand, which lies separated from her body on her left side. The pig, a rather plump, but very clean and pink specimen, has two penguins as companions. He carries around his neck a garland of flowers and a barrel, such as those used by Saint Bernard dogs to rescue people lost in the snow. What of it you ask? Well Fait d’Hiver is also the title of the earlier 1985 Naf Naf advert (above right), which also represents a woman lying in the snow, eyes wide open. One cannot see her body below her torso, and only her right hand and arm are seen in the ad. She is dressed in a Naf Naf ski jacket, popular during the cold 1985 winter. A piglet is seen on the right of the ad with a Saint Bernard barrel around its neck, and the ad bears the Naf Naf slogan Le Grand Méchant Look (The Big Bad Look). A claim is expected from adman Frank Davidovici - and the Marie-Andree muses on possible defences Koons might have - fair use maybe? parody? Koons has been in the courts before and has a mixed history with litigation, so we shall see!

Just drifting into designs ..... Rob Law, owner of luggage company Magmatic, which produces kids’ travel accessories brand Trunki, believes he has secured a victory for British design businesses by winning the right to fight the ruling made by the UK Court of Appeal that PMS International's discounted - and allegedly copycat  - Kiddee Cases - did not infringe Truki's designs - overturning Mr Justice Arnold (Magmatic Ltd v PMS International Ltd [2014] EWCA Civ 181). The Supreme Court awaits. 

Canada's new ISP notification system - the 'Notice and Notice' system is preparing to make it's entry on January 2nd 2015 with TechDirt opining "like the country's copyright reform efforts, it tries to actually incorporate the concerns of all parties involved (gasp, again). The system is first and foremost designed to raise awareness of copyright violations. That really doesn't take much -- Canadian ISPs state that simply notifying the user (especially the user's parent) puts a big dent in infringement right out of the gate. More specifically, ISPs claim 89% of notice recipients don't infringe after the second notice". Whether a 'notice and notice' system works better than a 'notice and takedown' system works for content owners remains to be seen, and the new system is not without critics.

Our 2014 review of THE COPYRIGHT YEAR is nearly done and we are just putting the finishing touches to that. Expect a blog post here soon!

And finally - if you get bored over the festive break - why not try The EFF's festive crossword puzzle, packed full of all sorts of questions about IP and copyright news from 2014 - it's a good one! Thereis an online interactive version here http://thedod.github.io/eff-crossword-2014/ or try http://gizmodo.com/heres-a-festive-crossword-puzzle-about-2014s-ip-and-cop-1674433850

HAPPY CHRISTMAS TO THOSE OF YOU WHO
CELEBRATE THIS DAY

The CopyKat - snippets of copy writes from around the globe

Russia’s State Duma, the parliament’s lower house, has approved a package of amendments to the anti-piracy law, which will cover video, books, music and software, but not photos.  Tass reports that rights’ owners can now demand suspension of Internet sources, which violate authors’ rights, for a period of court proceedings. Two couyrt defeats will lead to an closure of the offending website and the court will decide on a permanent blocking of a Web site. Among the amendments there is an initiative under which a Web site owner must delete during 24 hours any content, rather than limit access to it, upon an electronic request from a rights’ owner. “Our fundamental aim was to protect rights’ owners from professional pirates without creating serious problems for Web’s users, who may not be familiar with details of the law on authors’ rights and are authorized to use the whole content that is available,” Duma deputy speaker Sergey Zheleznyak said in his Facebook account.

The Turtles - happy again?

The Turtles, the 1960s pop band,  have  won a second victory against SiriusXM Holdings Inc. U.S. District Judge Colleen McMahon in Manhattan rejected Sirius' request to dismiss the lawsuit accusing the satellite radio company of playing pre-1972 songs from the band, best known for the hit "Happy Together" without permission or paying royalties. She said that unless Sirius raises any factual issues requiring a trial by December 5th, she will rule outright for the plaintiff, Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman, and begin to assess damages. The Judge said "Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.  But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it  and Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright.  More here and here. Digital Music News opines that based on Judge McMahon's comments  " Although the defendant in the case is a digital service, the ruling would appear to apply to any radio station, nightclub, or any other venue that plays recorded music in New York". So, traditionally free from paying royaties for recorded music in the USA  - is broadcast radio next???

Oracle's 2007 case against SAP, alleging that the latter’s Texas-based subsidiary TomorrowNow had illegally downloaded millions of copyrighted documents and programs from its customer connection website has finally bee settled. In 2010, a jury awarded Oracle $1.3 billion in damages based on the value of a hypothetical license that SAP should have negotiated for using Oracle’s copyrighted software. In response SAP filed a suit claiming that the amount should not be based on hypothetical licenses but on facts. In 2011, U.S. District Judge Phyllis Hamilton rejected the previous claim and settled the amount at $272 million.
Oracle then appealed to the 9th Circuit Court of Appeals to revert the amount to the original $1.3 billion. The court considered Oracle’s appeal and agreed that the second amount was too low. However, earlier this year, Oracle was ordered to either accept $356.7 million or file for another claim and Oracle has now settled the case for $359 million ($356.7 million plus $2.5 million in interest). 


The Federal High Court in Lagos has thrown out a case brought before it by the Musical Copyright Society of Nigeria (MCSN) seeking to restrain the Copyright Society of Nigeria, Coson, from declaring that it is Nigeria’s sole collective management organization for musical works and sound recordings. Justice O.E. Abang ruled against the MCSN In its battle for legitimacy against Coson and the Nigerian Copyright Commission (NCC). In the suit, MCSN had asked the court to declare that Coson fraudulently misrepresented particulars of its membership to the NCC, which particulars the NCC relied upon to grant approval to Coson. MCSN asked the court to revoke the approval and to declare that the approval of Coson as a sole collective management organization deprived MCSN, its members, assignors and affiliates of their fundamental and constitutional rights to freedom of association, freedom to own and enjoy property in copyright and access to justice and as such is unconstitutional, null and void.   Suit No. FHC/L/CS/377/2013. More on the Premium Times here.

The Brisbane Times reports that websites that host or link to copyright infringing movies and TV shows could soon be blocked if the Australian cabinet approves a government submission to tackle online copyright infringement. It seems Attorney-General George Brandis and Communications Minister Malcolm Turnbull are canvassing a range of options put forward in response to their online copyright infringement discussion paper released in late July and intend to present cabinet with their own submission before Christmas. The ministers will likely recommend government put a requirement on internet service providers to forward letters about alleged copyright infringement from movie and TV studios to their customers. It's also likely they will recommend making it possible for rights holders to seek an injunction in court to require multiple internet providers block websites hosting infringing content.

In New Zealand MegaUpload founder Kim Dotcom is facing a number of new temporary conditions to his bail over allegatiuons of multile breaches of previous conditions an an assessment that he may be a 'flight risk' Dotcom's full extradition hearing to the US on criminal copyright charges has been long long delayed - it's nearly three years since his controversial file-transfer business was shut down by the US authorities - and this will be subject to further delays after Dotcom's US lawyer confirmed that he and co-defendat Finn Batato had lost their legal team with New Zealand law firm Simpson Grierson and barrister Paul Davison QC withdrawing from the case. The new restrictions on Dotcom imposed by Judge Nevin Dawson in the Auckland District Court bans Dotcom from travelling more than 80km from his home, and from using helicopters or boats and he must hreport to police on a daily basis. Reports say that prosecutors have  called for Dotcom to be jailed again pending extradition, a proposal that will be considered by a judge next week.

And finally from China comes news that the Government is planning to create 3 Special IP Courts in Guangzhou, Beijing and Shanghai, where, according to a new update on the IPKat, the majority of Chinese IP cases are filed.  This is ostensibly to handle the growing backlog of cases in these jurisdictions and to address the special technical requirements and intricacies of IP cases. The new IP courts would be trial as well as appeal courts and it seems the Beijing IP court may focus more on administrative cases, while the other twocourts would  focus predominantly on civil infringement cases

The CopyKat - SiriusXM on the ropes as US judges align

GMA News tells us that the Intellectual Property Office of the Philippines is strengthening copyright protection and awareness in the country, ahead of the Asean economic integration in the latter part of 2015. IPOPHL director-general Ricardo Blancaflor highlighted moves during the 35th Manila International Book Fair in a move to reverse the inclusion of the Philippines on the watchlist of the US Trade Representative. In the recent copyright forum between the Philippines and Korea, IPOPHL and the Korea Copyright Commission (KCC) signed a Memorandum of Understanding to strengthen the copyright industry of both countries. Sharing the copyright protection system of Korea to the Philippines is one of the main goals of KCC which is under the supervision of the Ministry of Culture, Sports and Tourism (MCST) of the Republic of Korea. The purpose of this signed partnership is to establish a collaborative relationship between the two countries in the field of copyright and related rights, in order to protect the rights of authors and related rights, to promote the fair use of works and to endeavor to improve and develop the culture and creative industries of both countries. 

Following the publication of his copyright and education report last week, Mike Weatherley MP has announced he is stepping down from his role as Intellectual Property Advisor to David Cameron after a year in the job. Weatherley had already announced that he would step down as MP for Hove and Portslade at the next election, and with that new election looming, Mike no doubt realises that copyright will be buried deep beneath isues such as the UK's membership of the European Community, NHS reforms, the economy, education, immigration, sleaze and and English parliament - to name but a few burning topics.  Confirming he was stepping role, Weatherley said: "It has been a wonderful opportunity to work with the Prime Minister in this way. Feedback from industry has been very encouraging throughout the time that I served as the Prime Minister's adviser and I have very much enjoyed the work that was involved in both tackling IP crime and boosting the profile of IP generally".

The IFPI's Head of Global Legal Policy, David Carson, is leaving the global recorded music body to return to a role in the US government. The organisation is not directly replacing Carson, but instead expanding the remit of its Director of Licensing, Lauri Rechardt. Carson joined the IFPI in August 2012 from the General Counsel of the US Copyright Office, where he had served as General Counsel since 1997.

And copyright attorney and former Library of Congress digital director Mary Rasenberger has been named executive director of the Authors Guild in the US. The Guild, which represents thousands of published writers, announced the change Thursday. She succeeds longtime head Paul Aiken, who has been diagnosed with ALS.

YouTube has hit $1bn in payments to companies that participate in its 'Content ID' programme that sells advertising on user-generated clips that could/would otherwise infringe copyright "in a sign that media groups increasingly see the video site as a friend rather than foe". More on the Financial Times here.

The Geeks are up in arms! Microsoft appears to be taking down YouTube videos with content related to Windows 8 based on copyright claims. Bruce Naylor, a techology reviewer and analyst at his YouTube channel FrugalTech, received a takedown notice sent from a brand protection company called Marketly on behalf of Microsoft. Naylor explained  that he filmed the video on January 6th, 2013, and called it an “op-ed piece”  saying “At no point during the video did I actually use any third-party copyrighted material,”  and “No music, video, photos — nothing like that. It was strictly talking about why Windows 8 was failing in the marketplace at that time.” And  Scott Hanselman, who works for the Web Platform Team at Microsoft (yes!)  made a how-to video for Windows 8.1 that was cited for copyright infringement - one of two copyright complaints. Microsoft responded saying "“While we are still investigating the recent YouTube takedown notices, it appears some of these videos were inadvertently targeted for removal because there were stolen product keys embedded in the comments section of the videos. Our intention was not to target legitimate YouTube content and we are sorry for the impact this has had.  We have already taken steps to reinstate legitimate video content and are working towards a better solution to targeting stolen IP while respecting legitimate content.”

SiriusXM have had some more bad news: A California federal judge Phillip Gutierrez had already delivered a "legal earthquake"by finding that SiriusXM had violated the claimant's (sixties band the Turtles)  pre-1972 master copyrights by playing their music without licensing it or paying performance royalties and now another fesderal judge who had indicated some support for SiriusXM's decision has now had a change of heart and now is minded to follow the Carifornian court.  Los Angeles Superior Court Judge Mary Strobel is presiding over a similar case brought by Capitol Records and other record industry giants; Judge Strobel had previously expressed her inclination to reject proposed jury instructions offered by the record companies, but now she had a change of heart by granting what the record companies were seeking. "Plaintiffs ask the court to take judicial notice of the order granting summary judgment in Flo & Eddie Inc. v. Siruis XM Radio, Inc," she writes. "While a federal trial court opinion is not binding on this court, the court finds the logic applied in that order interpreting Civil Code §980 to be persuasive."

Google is rolling out an update to its search engine next week that will downrank websites containing pirated content. The new, improved algorithm pushes copyright violators lower in search results. "We've now refined the signal in ways we expect to visibly affect the rankings of some of the most notorious sites," Google says in its latest transparency report. The update will also affect search autofill behavior to prevent sites with pirated content from appearing in results. Furthermore, “legitimate” media sites like Netflix, Amazon, and Google Play will be prioritized to the top of Google's results page when users search for a particular movie, TV show, or song. More on the fastcompany website here.


And finally, in Germany Uploaded.net has been found liable for not deleting copyright content in a timely manner. Anti-piracy company Pro-Media informed the file-host of the infringement via a ‘takedown’ email, but Uploaded claimed not have been aware of the notice. A notic detailing infringing URLs on the file-hosting site was sent to the given abuse contact of the site,” Mirko Brüß, a lawyer with record label lawfirm Rasch Legal, told TorrentFreak. However, three days later the album was still being made available so the lawfirm sent Swiss based Uploaded an undertaking to cease and desist. When the file-hosting site still didn’t respond, Rasch Legal obtained a preliminary injunction against Uploaded. The Regional Court of Hamburg has now ruled that Uploaded is liable, even if no notice has been viewed. The Court followed our reasoning, meaning it is sufficient that the file-hoster actually receives the notice in a way that you can expect it to be read under normal circumstances.

1972 and all that - but does the Turtles win against SiriusXM actually settle anything?

A California federal judge has delivered a "legal earthquake" by declaring Flo & Eddie of The Turtles "the victors in a lawsuit against SiriusXM over the public performance of pre-1972 sound recordings" by finding that SiriusXM had violated the Turtles' pre-1972 master copyrights by playing their music without licensing it or paying performance royalties. Flo & Eddie was created in 1971 and is owned and controlled by Howard Kaylan and Mark Volman, two of the founding members of the Turtles, who were most popular for their 1967 hit single "Happy Together." The lawsuit was filed in August last year, seeking royalties from the satellite broadcaster. Billboard reports that the plaintiffs are seeking $100 million in damages, but says "the money is hardly the only consequence of a ruling on Monday that could eventually disrupt the operations of the satellite radio giant as well as other services like Pandora." The band members launched the case in August 2013. 

But its not been plain sailing for pre-1972 copyright owners - nor is the whole issue exactly clear. In August this year, U.S. Federal Court Judge Mary Strobel indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions in a similar matter. The plaintiffs again are arguing that state laws protect the misappropriation of older pre-1972 sound recordings that were authored before federal copyright protection applied. But in that case the judge wasn't ready to go that far and indicated that she felt the label's might be relying on inappropriate case law. 

Those Turtles

Billboard reports in the new California decision, U.S. District Judge Phillip Gutierrez ruled against SiriusXM holding that California state law, as it is written, gives the master recording owner exclusive performance rights. Consequently, the judge further ruled in Flo & Eddie's favour on all causes of action as it applied to public performance, but not to alleged reproduction copyright violations. The judge ruled that if Flo & Eddie want to pursue their allegations of copyright, that SiriusXM was making and storing temporary copies of their music for broadcast purposes, it would have to be decided in a separate trial.

With Judge Strobel's approach, as well as pending cases on the same issue in Florida and New York - almost all commentators expect SiriusXM to appeal against Judge Gutierrez's ruling although conversely it remains to be seen whether Judge Strobel now feels obliged to follow this week's ruling as a precedent. In Octoberc 2013 Sirius said "As will be shown at a later stage of these proceedings, there is no state law that requires SiriusXM (or any of the hundreds of thousands of other U.S. businesses that publicly perform music) to pay license fees for Pre-1972 Recordings," adding that "Plaintiff’s multiple court filings constitute a form of lawsuit lottery in search of an elusive new state-law right that would radically overturn decades of settled practice."

The case is 13-cv-05693, Flo & Eddie Inc. v. Sirius XM Radio Inc., et al in the United States District Court, Central District of California

Turtles probe the murky soup of pre-1972 US copyright law

The Turtles

The Turtles are leading a $100 million lawsuit against SiriusXM, arguing that the satellite broadcasting company has infringed on millions of older recordings from thousands of artists, and that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law – which may arguably mean that Sirius plays songs recorded before that date without permission. The suit, brought under the California Civil Code, and led by vocalists Howard Kaylan and Mark Volman (later known as Flo and Eddie whose company leads the action and owns copyrights in a number of Turtle's sound recordings) was filed on August 1 in the Los Angeles Superior Court and is proposed as a class action. 

Are the Turtles' "Let Me Be" (1966), "You Baby" (1966), "Happy Together" (Billboard Hot 100 Number 1 in 1967), "Elenore" and "You Showed Me" (both peaking at No. 6 in 1969) and their well-known 1965 cover of Bob Dylan's "It Ain't Me Babe" protected against unauthorised plays by Californian state law (Californian Civil Code S980(a)(2)?  Sirius does currently pay compensation for the use of sound recordings (unlike terrestrial stations in the USA) at a rate set by the Copyright Royalty Board and the non-profit SoundExchange collects and distributes these royalties. Whether they collect for heritage acts is another matter – it seems Sirius did not, until recently, log or report all plays and does not report tracks played from before 1972 (meaning the recording artists and indeed their labels seemingly don’t get paid!).

Interestingly  in April this year in the 'Grooveshark' litigation, a New York state appeals court ruled that the safe harbour provisions of the Digital Millennium Copyright did not extend to per-1972 recordings as this was when Congress first recognized a federal copyright for sound recordings – although as Iona pointed out in her blog at the time, this flies in the face of previous decisions: last year, the Manhattan Supreme Court relied on the 2011 federal ruling in Capitol Records v. MP3tunes, to find "no indication in the text of the DMCA that Congress intended to limit the reach of the safe harbors provided by the statute to just post-1972 recordings." In 1972, in Goldstein v. California, the U.S. Supreme Court held that "Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of [copyright] piracy such as those which occurred in the present case."

Spin reports that The Turtles have a history of taking disputes to court. The band sued their own label in 1971, citing accounting irregularities, and ended up earning the rights to their songs' original masters. Many years later, they filed suit against De La Soul for damages of $1.7 million over a 1989 sample of  the Turtle's 1969 hit "You Showed Me." That case was settled out of court.