Author: Karen Hao

In EU, anti-terrorism act runs afoul of privacy

The European Court of Justice has ruled that the Criminal Justice (Terrorist Offences) Act 2005, which required all telecommunications providers to retain telephone and Internet metadata, violated the privacy rights of individuals. The court, the European Union’s highest judicial body, sought to balance the act’s legitimate law enforcement and anti-terrorism purposes against the fundamental privacy rights of individuals; the judges said the act violated the principle of proportionality and was insufficiently circumscribed to ensure interference was limited to the strictly necessary. Digital Rights brought the issue to the High Court in 2006, challenging governmental efforts to require the retention of data in electronic communication, particularly as provided in the Criminal Justice (Terrorist Offences) Act 2005. That act requires providers of telephone communications services to retain traffic and location data for specified periods to prevent, detect, investigate and prosecute crime and to safeguard state security. According to Arstechnica, Privacy International, a London-based nonprofit, argued, “this ruling demolishes communications data surveillance laws not just across Europe, but sets the precedent for the world.” In the United States, according to Bloomberg BNA, a coalition of privacy groups sent a letter to the White House urging the Obama administration to recognize the ECJ’s opinion, asserting it “bears directly on the White House’s review of the NSA Telephone Records Collection Program and also the White House study of Big Data and the Future of...

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With infringing rap game, elusive damages

So you’re a Entertainment Law litigator and you get a case in which the facts seem on your side and the monetary damages that might follow could sound, well, juicy. As a recent case involving a rap song video game shows, however, litigants should not count their money in a lawsuit before all the ink’s dry on all the papers. Consider: What seemed like a copyright infringement lawsuit in New York with a potential $8 million payoff, well, honey, a federal magistrate and a U.S. District Court judge shrank that award.  (Online decision posted, courtesy of Courthouse News.) And, combined with a no-show defendant, that led counsel, figuratively, to whistle in the air and wonder about, is it leprechauns and their booty at the end of rainbows? Let’s look at what happened, starting in 2009, when 4MM, a video-game developer and publisher of Def Jam Rapstar, approached Capitol Records to license recordings for a rap song game with an agreement that 4MM never paid. Capitol, along with other record companies, sued 4MM for infringement, asserting unauthorized reproduction, distribution, use, and exploitation of certain musical compositions and sound recordings. For its part in this litigation, EMI sought $150,000 for each infringement, sending the projected total damages to more than $8 million. All defendants in this case but 4MM settled. 4MM never responded and the court ordered a default judgment against it on Nov. 15,...

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MP3tunes loses a $41-million copyright case

A New York jury has ordered Michael Robertson, founder of MP3tunes.com, to pay an estimated $41 million in damages for infringement of copyrights owned by EMI Group. MP3tunes was best known for its cloud music service that allowed users to store music in online lockers, which could be downloaded through any internet device. MP3tunes.com is still online, offering cloud storage but no longer offering music to download. In 2007, EMI sued MP3tunes, and, in 2012, MP3tunes filed for bankruptcy. The judge originally granted summary judgment to EMI, holding that MP3Tues and Robertson were liable for direct infringement for personally uploading some songs and there were issues of “willful blindness” and “red flag knowledge” regarding other songs on the site. In 2012, the U.S. Court of Appeals for the Second Circuit addressed the Digital Millennium Copyright Act’s safe harbor in Viacom v. YouTube, and as a result, the judge in MP3Tunes withdrew his prior summary judgment ruling. While Robertson tried to argue that his infringements did not rise to a level of what is “objectively obvious” to a reasonable person, however it was ultimately up to the jury. The jury came back with a ruling that MP3tunes was willfully blind, leading to an estimated $41 million damages verdict including $7.5 million in punitive damages. This late March ruling was celebrated by the entertainment industry’s copyright advocates may have inspired Hollywood...

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Actor inks a day pact, signs face rights away

Can you imagine unknowingly giving away the rights for your face? Todd Duffey, aka: Chotchkie’s Waiter in Office Space, sued 20th Century Fox for using his face on both the book’s cover and one of the buttons, claiming false endorsement under the Lanham Act, 15 U.S.C. §1125(a), which grants a claim only if the defendant is using his likeness without permission. Here, Duffey signed a one-page Day Player Agreement with Cubicle Inc., the production company behind Office Space, which granted Cubicle “all rights throughout the universe” to Duffey’s performance. A federal court in New York has dismissed Duffey’s claim (thanks to The Hollywood Reporter Esq. for posting the decision) because his agreement granted the production company “all rights throughout the universe in and/or to all results . . .  including, but not limited to, the rights to. . . exploit in any manner. . .  any pictures, likeness or representations made hereunder, of Duffey.” Duffey argues that the rights granted to Cubicle did not include use of images with consumer merchandise. The court applied the “objective intent” test to determine whether a contract is ambiguous. U.S. District Court Judge J. Paul Oetken also applied the contract interpretation that “contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense,” which it did not, in this case....

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EU high court OKs steps to block infringement

The Court of Justice of the European Union has ruled that Internet Service Providers in Europe legally may block piracy sites. The decision came in a case involving Constatintin Film and Wega, two movie production companies that had sued UPC Telekabel, an ISP, to block access to the website kino.to, which illegally distributes copyright-protected material.   The court decided that because “Intellectual property has. . . .been recognized as an integral part of property. . . rights holders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network“ — meaning rights holders could seek injunctions against an ISP. As Entertainment Law Digest summarizes, the court reached its decision by “balancing the rights of copyright holders, the business interest of Internet providers and the right to information by EU citizens.” It concluded that, while rights holders may seek injunctions against them, ISPs also may put in place their own blocks, targeting only an infringing or piracy site. The service provider will be clear of liability, as long as it “does not unnecessarily deprive internet users of the possibility of lawfully accessing the information available.” It also must show that its blocking measures do, indeed,  prevent unauthorized access to the protected subject matter or at least make it difficult tough and discouraging to those who would use their...

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The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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