Author: Kyle Rambeau

High court declines digital downloading case

The Supreme Court recently has denied certiorari in American Society of Composers, Authors and Publishers (ASCAP) v. United States, reinforcing the notion that public performance royalties will not be paid to artists when their music is digitally downloaded from internet companies such as Yahoo!, which did not want to pay the 2.5% royalty rate that ASCAP sought to impose on each song that was downloaded. The justices let stand the New York appeals court ruling that a digital download of a musical work does not fall under the Copyright Act’s definition of a public performance, and, therefore, copyright owners have no right to be compensated. The high court justices effectively agreed with the appeals court when it stated that: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.”000 Theodore Olson, the attorney for ASCAP, contended the appellate ruling improperly narrowed public performances of copyrighted works and places the United States in violation of not only intellectual property treaties but international agreements, as well. The United States, opposing the appeal to the Supreme Court, argued that the appellate court correctly laid out the difference between music that is downloaded and music that is streamed: For the downloads at issue here, the contents of the file are not played during the download.  Rather, after the download is complete, the customer may use...

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Fed-up judges tossing those mass lawsuits

It’s getting tougher and tougher for companies filing mass-defendant file-sharing lawsuits.  Federal judges have been ‘laying down the law’ all over the place, making it much harder for the firms to randomly sue individuals using mere IP addresses with regards to P2P file-sharing infringement. In one recent holding, U.S. Magistrate Bernard Zimmerman, in On the Cheap, LLC dba Tru Filth, LLC v. Does 1-5011, decided to drop 5,010 of the 5,011 anonymous ‘John Doe’ defendants, using everyone’s favorite civil procedure cases as support to rule out every Doe defendant that did not have personal jurisdiction in the Northern District of California.  Simply put, Judge Zimmerman stated: “[d]o not sue Californians who do not live in my district!” He also explained how impossible it would be to bring 5,011 defendants into the courtroom at the same time, in addition to each defendant having her own lawyer, issues and defenses to bring to the table. A similar holding was announced about a week earlier when U.S. MagistrateJoseph Spero dropped 187 of the 188 ‘Doe’ defendants who were only being sued because their IP address was matched up to illegal file-sharing of pornographic materials.   Even with new geolocating devices used by companies to more correctly locate the IP addresses of individuals who are using P2P services to illegally share copyrighted material,  Judge Spero stated: The court remains unpersuaded that the peer-to-peer architecture...

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Beware, trademark owners: .xxx domains ahead

Imagine owning the restaurant chain ‘Pink Taco,’ with a website domain name of Customers obviously would understand this site belongs to your franchise. In the next month, though, the release of the .xxx domain, available to adult entertainment companies, could create considerable confusion — and consternation for those already holding .coms. Fortunately, starting this week, trademark owners have options and time to protect their brand from potential negative associations with .xxx domain names.In March, the Board of Directors of Internet Corporation for Assigned Names and Numbers (ICANN) approved .xxx domain names for “adult entertainment” websites.  Thankfully, ICM Registry LLC, the operator of the .XXX domain, is providing a Sunrise registration period, known as ‘Sunrise B’,  that allows trademark owners who are not in the adult entertainment industry to block domain names correlating to their trademarks.  This period began Sept. 7 and will run for 50 days, until Oct. 28. After this period, a “land rush” period will begin Nov. 8, during which companies will have access to remaining .xxx domain names for 17 days before these then will fall into general availability. The price for individuals and companies to protect their brand will be roughly $150-$300 per domain name in the sunrise period. Unfortunately, squatters still may get an upper-hand because trademark owners are restricted to blocking only those .xxx domains that exactly match their eligible, registered trademarks; they...

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Music publishers settle with YouTube

The National Music Publishers Association has decided at long last to dismiss its copyright infringement lawsuit with YouTube and its parent company Google.   The music publishers decided to give into the reality that having its artists get paid was far better than continuing litigation with mounting attorney fees.  The group sent out a news release in which it stated: As a result of this resolution, music publishers will have the opportunity to enter into a License Agreement with YouTube and receive royalties from YouTube for musical works in videos posted on the site…[t]he license opportunity will enable music publishers to grant the rights necessary for the synchronization of their musical works with videos posted by YouTube users and to receive royalties from YouTube for user-generated videos for which YouTube receives advertising revenue worldwide. An essential element in this settlement was the entry of The Harry Fox Agency, which will track and administer royalty statements for the music publishers, notwithstanding any of the publisher’s prior affiliations. While some analysts see the resolution of this dispute as evidence of how YouTube in praise worthy fashion has worked to clear away litigation, others have their doubts, especially about Google-related technology concerns that underlie this deal. And not all is fine and dandy for YouTube now since this class-action lawsuit is separate from legal moves by Viacom; courts had heard the music publishers’ and...

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A copyright conflict over U.S., foreign markets

Can those holding copyrights gain more control over materials simply by dint of where they’re made, in the U.S. versus abroad? That’s the curious conundrum that now confronts the intellectual property world now that the Second U.S. Court of Appeals has weighed in with its thinking about the “first sale” doctrine in Wiley v. Kirtsaeng,  in which analysts say the appellate court expanded the rights of copyright owners. The court examined whether purchasers of many items get certain legal protections from claims of copyright infringement when they sell their items — the “first sale doctrine,” finding this longstanding notion rooted in common law is inapplicable to copies imported and manufactured abroad. This would make first sale apply only to domestically made items. The case before the court concerned the actions of Supap Kirtsaeng, a graduate mathematics student who bought books overseas, lesser quality texts (e.g. with different paper stock, soft covers) published by John Wiley & Sons. He then resold them in the U.S. without the publisher’s permission.  The language regarding the first sale doctrine states that: Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. While that language would seem...

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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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