Month: April 2013

Pre-’72 tunes get less groovy for online services

Richard Nixon still was president and Gordon Liddy was just proposing a plan involving a Democratic office in a complex called Watergate. Don McLean (American Pie) and Michael Jackson (Ben) had hit tunes and HP introduced the first hand-held scientific calculator. The Godfather was fresh, HBO had just launched as a commercial cable network, lava lamps were hot and so were bell-bottoms for men. That was all so 1972. But the New York State Supreme Court of Appeals has just brought that year back to the fore in its much awaited ruling favoring Universal Music Group over Escape Media group, owner of the music streaming service, Grooveshark. That decision underscores that timing is everything and tunes from the early Seventies and before may become a slam for operators of online services. Universal’s original suit claimed copyright infringement by the music streaming site and a key legal issue became Grooveshark’s hosting of unlicensed music recorded before 1972. Before that year — when Bobby Fischer became a chess king and Hurricane Agnes an East Coast killer — there effectively was no “safe harbor” for later-developed online services. The Digital Millenium Copyright Act, which took effect in 1998, provides protections for services like Grooveshark, YouTube and SoundCloud against copyright infringement claims on music recordings made after Feb. 15, 1972. If Congress had wanted to extend that shield even earlier, it would expressly have done so,...

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Why it pays to read fine print on YouTube site

If you post on an online service and tap a snippet of another’s content and you do so to provide a critique or commentary of it, well, legal minds might argue that’s fair use, right? But what if a copyright challenge and take-down notice crops up, well, to whom would you appeal and what kind of response might be equitable — shy of litigation? John McKelzey’s struggles with YouTube over a hip-hop review he put on a video channel he created there, as reported by Daily Dot then by Mashable, not only raises intriguing issues of law, it also provides a reminder: Nothing’s free. And, ultimately, big business interests can trump others. Two years ago, McKelzey, of New Jersey, had what he thought was a legal video removed from”Werner von Wallenrod’s Humble Little Hip Hop Vids,” his self-created collection or channel of multimedia reviews of hip-hop albums, on YouTube. The company told him his work violated the site’s terms of use because it included material from Eric B. and Rakim’s album, Eric B. for President. McKelzey was confused because he thought his review was defensible as a fair use. As the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law says, his was an activity in which there were “quotation of excerpts in a review or criticism for purposes of illustration or comment.” He saw...

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Round 3 goes to YouTube in Viacom slug fest

For the second time in four years, U.S. District Judge Louis L. Stanton in New York has granted summary judgement to defendant YouTube in a long-running copyright infringement suit filed by Viacom, Inc. That ruling came after the U.S. Court of Appeals for the Second Circuit had reversed Stanton’s initial summary judgment, with the appellate judges finding that a reasonable jury could decide that YouTube either had “knowledge or awareness” of infringing clips of Viacom’s shows on its website or that it was “willfully blind” to infringement taking place. In the district court’s latest decision, Stanton again held that YouTube was protected by the  Digital Millennium Copyright Act’s “safe harbor” provision, Section 512 (c). He essentially found that the burden rests on copyright owners to locate infringing content, and when they do so, they or their agents must send online service providers notices seeking to take down disputed material. Section 512 (c)(3)(A) lists six requirements for an adequate take down notice. YouTube is not the only provider sheltered under the DMCA. Should it protect websites like YouTube to this extent? Absolutely. The sheer volume of content on YouTube (24 hours of video are uploaded to YouTube every minute) makes it onerous, nigh impossible, for a provider, arguendo, to police the site for infringing material. Indeed, YouTube showed the court 63,000 clips found to be infringing, then insisted that Viacom demonstrate that it had properly challenged each. And at...

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What’s next for ‘used’ digital after ReDigi?

After a U.S. District Court in New York has ruled that the reselling of digital music by ReDigi violates the Copyright Act, fans and owners of collections of tunes may be wondering if there will be future markets for previously owned digital content.  In a recent online article, Michael Risch, an associate professor at Villanova Law School, scrutinizes the issue anew, examining a situation said to involve Bruce Willis and Apple, a purported tiff that turns over the Die Hard movies franchise legend and his inability to bequeath his extensive iTunes music library to his children. While many iTunes users probably believe they buy their music outright, they, in fact, pay for a license to listen to tunes via an Apple device, such as the iPod or iPhone.  Which is where Willis and others may raise an argument that they should have the right to resell their music, as they can with a CD; fans have expressed exasperation with Apple’s terms and conditions for iTunes. Their only work-around may be for them to leave an entire device to their survivors, bequeathing them, say, their Macbook or iPod; that’s because their music is linked to a specific iTunes account and there eventually would be issues if heirs want to transfer music to another device. There also are conditions on how many times they may download an individual song.Such restriction on...

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New signals for shifts in legal battles over music

Music, with all the legal battling over its intellectual property rights, gets to audiences these days in ways that may prove surprising to some, according to new consumer reports. The NPD Group says, for example, that Internet radio has made significant inroads in the audience ages 13 to 35, increasing six percent over last year and capturing twenty-three percent of that key demographic. It trails just one percent behind its more traditional broadcasting counterpart, which captures a quarter of the big-spending demo. In contrast, just thirteen percent of older listeners tuned into net radio, with AM-FM broadcasts capturing forty-one percent of this audience. Pandora, the free and subscription-based streaming service, proved among those quizzed by NPD to be the net radio content king, capturing thirty-nine percent of music listeners ages 13 to 35. It’s worth noting that those sampled said they accessed net radio via their smartphones, with 0ne in five users tapping into online music in their cars, undercutting the AM-FM share. “Driven by mobility and connectivity, music-streaming services are rapidly growing their share of the music listening experience for teens and young adults, at the expense of traditional music listening methods,” said Russ Crupnick, senior vice president of industry analysis at NPD. These developments in net radio, of course, don’t signal the demise of music piracy. But the growth of Pandora (with 200 million registered users now)...

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