Month: September 2013

$1.35 million rebuke for TV streaming service

While the appellate courts can’t agree on the legality of streaming broadcaster Aereo, federal district courts have slapped around a similar enterprise: FilmOn,  owned by Coca-Cola heir Alki David. After a U.S. judge in Washington found the company likely violated the copyrights of Fox, CBS, NBC and ABC by retransmitting their shows online,  she issued a nationwide injunction against FilmOn. And now a different judge has  found the company violated a settlement and court order that resolved a copyright case against it. The TV networks say FilmOn breached that 2012 settlement, failing to pay in full what it owed for copyright violation, then continued to show networks’ protected videos. The company has been ordered to pay $1.35 million for refusing to comply with court rulings. FilmOn, which has said that tax issues kept it from paying more than the quarter-million or so it already has ponied up in connection with this case,  has defended itself by asserting that Fox breached the settlement agreement by sending notice of the internet TV service’s claimed copyright violations to businesses (Apple, Google, and Microsoft), all the while knowing that the antenna-based, individualized and on-demand technology used in this net streaming it terms legal. Alas, for FilmOn, the courts haven’t settled this issue and David’s approach only has complicated the legal situation for Aereo, founded by media mogul David Geffen and others. Consumers, of...

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As foes fight condom law, HIV halts X filming

For clients and counsel alike, even the most solidly advanced legal argument suddenly can find itself fighting its way upstream due to unforeseen circumstances occurring outside court. Take the case of the adult film industry and its recent appeal of a U.S. District Court’s upholding of a Los Angeles County requirement that male porn performers wear condoms during XXX-rated filming. Who knew that, even as Los Angeles-based Vivid Entertainment  sought to overturn that finding, the whole naughty-movie industry would be grappling with not one, not two, but three and possibly four highly publicized instances in which actors or actresses have tested positive for AIDS-causing HIV infections? This, in turn, has prompted the industry itself to declare a weekend filming moratorium, the second in roughly a month. The timing of the actors’ HIV-positive diagnoses couldn’t be more challenging, in legal terms,  for those who are battling advocates of the county condom law, which proponents term a prophylactic measure necessary for public health and safety reasons. Porn proponents, of course, disagree, arguing that requiring condoms on specified sets and under targeted circumstances harms business. They say it is unnecessary because XXX performers undergo regular testing. And they say they’re battling the law because it is a rare and unconstitutional intrusion into movie-making, as it violates performer’s First Amendment rights to express themselves. To proponents of Measure B, dubbed the “Los Angeles...

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‘I’ll fly away’ decision grounded on appeal

I’ll Fly Away, the gospel standard written by onetime Oklahoma cotton-picker Albert Brumley, has been updated, remade and re-mastered by artists for decades now, taking wing as one of the most recorded songs of its genre. But the question of exactly who might profit from the work’s considerable popularity has been tossed in the air anew, remanded recently by the U.S. Court of Appeals for the Second Circuit  to a lower court for reconsideration of issues about evidence that may lead to a decision that sticks about the song’s copyright ownership among Brumley’s heirs. And while his composition may derive some of its power in performance by its fervent simplicity, Brumley, the record shows, played his own part in launching a legal tangle that traces to the Seventies, and involves some classic who said what and who meant what, all to be figured long after the fact. In the latest action in this running dispute, Robert Brumley, one of the writer’s sons, asserts in an appeal that his father, Albert, in 1975 assigned his interests in I’ll Fly Away to him and his brother, William. Robert claims that shortly thereafter, in a 1979 Bill of Sale, Goldie, the writer’s widow, assigned her interests, as well. In 2006, however, the writer’s four other children sought to terminate the assignment of the song. In a December, 2008, hearing, Robert argued that...

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Cyber lecture turns into a fair-use clash

When Harvard Law Prof. Lawrence Lessig uploaded his 2010 Creative Commons Conference keynote address in Seoul to YouTube, the last thing he expected was a legal confrontation. His lecture included several videos, including one showing people dancing to a copyrighted song, Lisztomania, to demonstrate the effect of the Internet on the communication of young people. To his consternation,  Liberation Music, claiming to own the tune’s copyright, filed a Digital Millennium Copyright Act take-down notice to force YouTube to remove Lessig’s video. With the help of the Electronic Frontier Foundation, Lessig fired back, filing a complaint against Liberation in federal court last Thursday for violation of Section 512(f) of the DMCA. The professor and the foundation hope to school Liberation and other quick-trigger take-down issuers in court about copyright’s Fair Use Doctrine, which allows for and even shields educational and nonprofit uses of copyrighted material. In his complaint, Lessig asserts his use of the song was noncommercial, minimal and caused no market harm. Further, he suggests that Liberation’s overreach in copyright enforcement violates his First Amendment right to freedom of expression. Liberation’s take-down of Lessig’s lecture appears particularly egregious because so many performances of the song still fly freely in cyberspace, sans DMCA threat. And while this kerfuffle has gotten Liberation some free attention, the Down Under record company may not fully be grasping the interconnection of music consumers and...

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Rapper’s lyrics delivered with conviction

Rappers, beware! Many such performers glorify adultery, gang violence, drug abuse and other criminal behaviors. But their extreme language can have legal consequence: While rap lyrics typically are taken as anecdotal hyperbole from a, perhaps, utterly conjured thug life, the words also can’t absent themselves of real meaning, the justice system contends. And the Supreme Court of Nevada has underscored this, affirming felony convictions of rapper Deyundrea Holmes, aka “Khali.” He had appealed his conviction, asserting his trial was unfair because prosecutors got lyrics of a “gangsta” rap he wrote after his crime admitted into evidence, assisting in his first-degree murder and robbery conviction. Further, while jailed, the prolific and boastful rapper wrote another ditty that paralleled circumstances of the murder and robbery for which he was convicted. The court found unconvincing his contention that other rap tunes contained similar lyrics and that jurors might be prejudiced against him because of the bad reputation of gangsta rap. Caleb Mason, a Southwestern Law School professor who has penned a take-down of Jay Z’s evidentiary theories in 99 Problems, earlier has warned that provocative raps by superstars Chris Brown and Drake over a putative, lucrative and career-enhancing rivalry over the sultry Rihanna — which has led to fists and bottles flying in some hip-hop clubs — could prove legally problematic to the duo in...

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