Month: November 2012

Pandora takes fee fight with ASCAP to court

After long negotiations failed, Pandora has sued the American Society of Composers, Authors and Publishers (ASCAP) and is asking the U.S. District Court in New York to set “reasonable” license fees and terms for a period from Jan., 1, 2011, to Dec. 31, 2015, on a “through to the listener” basis, meaning no third-party licensing is required. Pandora and ASCAP had negotiated a standard form “Experimental License Agreement for Internet Sites and Services” between 2005 and 2010. But ASCAP is unwilling to extend this because “it is not an appropriate benchmark for establishing reasonable ASCAP license fees.” The music rights group gave the Radio Music Licensing Committee (RMLC) a rate that reflects a fee decrease of about 30% for the  majority of radio stations. The court-approved settlement covered “both over-the-air-broadcasting and internet/mobile (collectively, ‘new media’) content offerings operated by RMLC members.” ASCAP won’t offer Pandora the same deal given to its competitors. The sticking point is RLMC’s 25% standard deduction for new media radio offerings, whether or not ad sales forces are in-house. Pandora primarily has an in-house sales team and ASCAP is only willing to offer a 15% deduction to actually incurred outside-agency commissions. Pandora also asserts that its licensing fees should be reduced because ASCAP adopted new governing rules in 2011 allowing publishers to withdraw certain licensing authority. EMI announced its plans for New Media Rights Withdrawal in 2011 and has already negotiated a fee and...

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A `rights termination’ tussle with many turns

If copyright terminations weren’t complicated and freighted enough already, the case involving the Ray Charles Foundation and the legendary singer’s heirs has many in the legal entertainment industry scratching their heads, wondering if this litigation will set unexpected precedent. The foundation was bequeathed with song rights stemming from a copyright grant by Charles  to Warner/Chappell Music. But Charles’ heirs have sought to terminate the grant pursuant to the copyright act and recover for themselves rights to hits like “I Got a Woman.” And that’s where things have gotten complicated. The heirs,  who fared poorly in the will (provided $500,000 each isn’t exactly chopped liver), sent notice to terminate the grant and the foundation filed suit (copy of same, thanks to the Courthouse News) for declaratory relief. That litigation is pending and in the early stages; a decision could have significance for termination-rights disputes says In another case on termination rights, involving a co-author of the Village People anthem, “YMCA,” a federal court in California declared there was a successful reversion of rights and enforced termination of the copyright grant. Here, if the heirs successfully terminate the grant, then the rights to Charles’ songs will revert to them, along with royalty checks that have been going to the foundation. But could the parties please make up their minds as to what’s at legal issue in the dispute over control of some songs by the...

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In content delivery, a trend toward streaming

Amid reports by that CBS may agree to stream current series and deal with the likes of Netflix and Amazon, it appears that the battle for the future of content distribution is trending online. This shift toward internet streaming-service providers will, for many ‘cord cutters,’  come as little surprise.  Those who stream pay much lower fees and see their favorite content back-to-back and on-demand, as opposed to cable plans. Cable offers traditional, all-you-can-eat buffet style plans; it’s more expensive and not on-demand. Earlier this year, broadcasters including ABC, NBC, Universal, Univision, Fox Television, CBS, networks and rights owners, asserted that the Seattle based infringed their copyrights by live-streaming their programming without permission. Ivi argued it could retransmit as an “Online Video Distributor” under §111 of the Copyright Act. The court disagreed and enjoined Ivi. (For more on that decision, read this Biederman Blog post).  The recent developments align with the federal court’s Ivi decision, and broadcasters, networks and others clearly have the leverage to require streamers like Netflix and Amazon to pay to distribute their content. And why wouldn’t they? Although Netflix didn’t hit its 2012 subscriber goal as reported by, the company hopes to make global partners and increase its viewership and profits. So while this was a battle between two different platforms, for viewers,  it now appears to have moved into a negotiation, as the transition speeds from cable (and satellite)...

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Sony fends off class-action claim over hacking

The litigation continues to be relatively one-sided between Play Station users and Sony over a 2011 security breach in which hackers accessed private user information; the federal court in Los Angeles has granted defendant Sony’s motion to dismiss a class-action complaint, the order here, compliments of The court let plaintiffs amend but only for their claims for injunctive relief and alleged violation of consumer protection laws. reports that U.S. District Judge Anthony Battaglia granted the motion in part because of language found in the Sony Playstation Privacy Policy. It included “clear admonitory language that Sony’s security was not ‘perfect,’ ” therefore, “no reasonable consumer could have been deceived.” Plaintiffs and other Class members had  to provide personally identifying information to Sony, including names, mailing and email addresses, birth dates, credit- and debit-card information (card numbers, expiration dates and security codes) and log-in credentials (“Personal Information”). All this data had to be surrendered when customers set up accounts with Play Station Network (PSN), Qriocity (another online network provider) and Sony Online Entertainment, which Sony stores and maintains on its network. After the security debacle, Sony offered protection for a year to its users via an identity-theft watchdog. And while many may consider consoles to be in their twilight as the preferred gaming platform, this case highlights a different hot topic going forward — online privacy and security. As of Jan. 25, 2011, PSN, had more than 69 million...

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Voters OK new regulation on adult film shoots

Measure B, known as the Safer Sex in the Adult Film Industry Act, has won with 56% support in Los Angeles County. The measure requires adult film producers to get a permit from the Los Angeles County Department of Health before shooting. This means producers must 1) prove completion of a blood-borne pathogen training course and submit an exposure control plan; and 2) use condoms for all acts of anal or vaginal sex during production of adult films. This measure exceeds a law signed by Los Angeles Mayor Antonio Villaraigosa in January, 2012. It did not require a permit when shooting in studios. The new measure bars any production of adult films for commercial purposes without a valid health permit. The stated purpose of the ordinance is to minimize the spread of sexually transmitted diseases, within the porn industry and the wider community. Adult productions are an  American pastime and The Smoking Jacket  reports it is a $13 billion industry, with pornos made in the U.S. every 30 minutes. According to Nick Allen, “Around 90 per cent of U.S. pornographic films are made in Los Angeles, almost all of them in the city’s San Fernando Valley, and the industry produces an estimated $8 billion (£5.2 billion) a year in revenue.” Porn filmmakers threatened to leave if the measure passed.  “Movies with condoms simply don’t sell as well,” said Steven Hirsch of Vivid Entertainment in an excerpt from...

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