CopyKat - a Thursday typhoon of copyright titbits

The Seoul High Court has ruled that performers and copyright owners whose music is streamed to the public from a digital source can indeed protect their rights. The appellate court ordered Hyundai Department Store to pay 235 million won ($230,000) to the Federation of Korean Music Performers (FKMP) and the Recording Industry Association of Korea (RIAK) for streaming music of their members for a two year peiod between January 2010 and December 2012.  Hyundai had taken the recordings from KT Music, a digital musical source retailer, and used the music at retail outlets.  The court noted  “There is no difference between streaming music and albums, in terms of financial losses from possible performances and sales of music albums” adding  “Streaming music also should be considered as same as music albums because its digital sources were saved in the database of KT Music and they also temporarily stayed on computers of the stores while they were streamed.”  The Korean Ministry of Culture, Sports and Tourism said earlier this year that it plans to revise the IP Law to boost the legal status of digitalized musical sources to the level of albums.  

Back in July, Aimee Mann brought an interesting lawsuit over the possible existence of a massive amount of unlicensed music being streamed online against MediaNet, a company once backed by EMI, AOL, BMG and RealNetworks before being taken over by a private equity firm. MediaNet is essentially a white label that has served up more than 22 million songs to more than 40 music services, including Yahoo Music, Playlist.com, eBay and various online radio services. Mann sued the company for allegedly infringing 120 of her songs, saying that a license agreement signed in 2003 expired three years later. MediaNet maintained it had a valid license and argued that a provision of its agreement with Mann granted it an ongoing statutory license even after the agreement's termination and a Section 115 US Copyright Act compulsory licence. But District Judge George King disagreed, siding with Mann saying "This is a reasonable interpretation of the License Agreement, and MediaNet has failed to argue otherwise," writes the judge. "Accordingly, Mann has adequately alleged that MediaNet does not have a Section 115 compulsory license to use her pre-December 5, 2003 and post-December 4, 2006 songs and Judge King went further agreeing the MediaNet cannot escape a charge of secondary infringement for allegedly causing others to infringe Mann's works. 

From Italy - with  no love? The Court of Rome has blocked Italian resident's access to VKontakte the Russian social network (with over 160 million subscribers) after a successful complaint by Medusa Film, who said that a non authorised copy of their comic film Sole a catinelle had circulated among the users of the Russian media giant. The Public Prosecutor decided the effective remedy was to block access to Vkontakte from Italy and now an Italian - or a Russian living in Italy, cannot communicate with their friends in Russia on VKontakte. But how long will this blanket ban extend for? And is it a reasonable solution to the problem - not least as it seems The Public Prosecutor did not make any attempt to contact the Russian social network and ask for the removal of the illegal copy of the film? One commentator mused “It is right to protect copyright...but the [Italian] Constitution puts the right of expression and communication and authors right on the same level. It is not correct to have one right prevail over the other” and Marco d’Itri who runs Osservatorio Censura, a site dedicated to reporting on Italian web censorship commented that action was being taken before a hearing on the full merits of the case. Rapidgator has also been blocked.

Six days before movie studios were set to begin a jury trial over alleged copyright violations by the "cyberlocker" site Hotfile, the case has settled. Hotfile has agreed to pay $80 million and to stop operating "unless it employs copyright filtering technologies that prevent infringement," according to a press release sent out today by the Motion Picture Association of America (MPAA). Judge Kathleen Williams had already ruled that Hotfile was not eligible for the DMCA "safe harbor" protection and that it was going to be liable for the actions of its users. Hotfile employed an incentive system to encourage downloading and paid users who uploaded popular files, including copyrighted files. 

Chinese online video site Youku Tudou has won a number of copyright infringement cases brought against Chinese search giant Baidu. Baidu was found guilty of copyright infringement by a court in Beijing. It was ordered to pay 491,000 yuan ($101,107) for illegally hosting 18 Chinese television shows that Youku Tudou bought exclusive rights to. Since October this year Youku Tudou has 32 filed cases against Baidu for infringing it's copyrights. The remaining cases are awaiting verdicts.

A new study by Peter DiCola for Northwestern University's School of Law shows that the 'average' musician relies more on income from live music and teaching than from the copyright industries. A study of the revenue streams of 5,000 musicians found that the largest portion of musician earnings are from live gigs (28 percent). Teaching comes second with 22 percent, salaried musical work has a 19 percent, share along with session work, also 19 percent. Songwriting/composing fees and recording earnings - the two categories most tied into copyright, bring in 6 percent each with DiCola's saying "A hypothetical boost in revenue from more effective [copyright] enforcement would only increase the average musician's total revenue by a small amount today, in the short term," adding "Stronger copyright might provide them incentives to move up the income ladder in a winner-­take-­all kind of market. But it will not put more money in their pocket today; for the hypothetical legislation to help them in the future, they must get rich first."

A man who was found to be in possession of one of the largest hauls of hi-tech equipment for use in copyright theft ever found in the UK has been sentenced to 18 months in prison. 52-year-old Keith Tamkin from Bognor had pleaded guilty to six offences - one of distributing articles infringing copyright, two of money laundering (a total of £140,000), one of transferring criminal property - a computer - and two of possessing prohibited weapons, a pepper spray and a stun gun. At one of the two properties used by Tamkin the police found more than 100 full computer hard drives, an estimated 150,000 CDs and DVDs, computers and eight 'multiple bay burning towers' to copy music, films and software. A large catalogue of 25,000 titles distributed to an extensive client base was also seized. 

The Turtles

Sirius XM have failed in an attempt to move a $100 million class action lawsuit in California for distributing and performing pre-1972 sound recordings to New York, where the broadcaster is facing another action. The satcaster is also facing two more actions brought by major record labels and a fifth lawsuit from SoundExchange, the digital performance rights organization that collects royalties on behalf of sound recording copyright owners. The California lawsuit is being led by members of The Turtles who say that Sirius cannot rely on section 114 of the US Copyright Act for protection – as pre 1972 recordings are subject to state law – which may arguably mean that Sirius plays songs recorded before that date without permission. Sirius argued that the plaintiffs were playing "lawsuit lottery" alongside the actions in New York and the third in Florida and sought to have the case transferred to New York and perhaps consolidated. But U.S. District Judge Philip Gutierrez denied Sirius' motion saying "it seems at this point that although the three suits share a common factual core, they are legally distinct and will turn on the separate interpretations of California, New York, and Florida law, respectively."

Could Judge William Alsup's June 2012 ruling that APIs could not be covered by copyright.about to be overturned by Federal appeals court? There are rumours about that at least one appeals judge is  are sceptical of the decision and may be leaning towards overturning it which would no doubt cheer up Oracle.

Watch this space!

The CopyKat - a heady mix of gorillas, monsters, social media and books!

if you missed this in the UK, then I can inly presume you must have been in a deep underground pit for three days, but a gorilla sculpture, painted to resemble the Queen frontman Freddie Mercury, has been removed after a complaint from Queen's manager Jim Beach on behalf of the Freddie Mercury estate. The organisers of Go Go Gorillas, a public art trail in Norwich, were told that the painted suit "worn" by the gorilla "breached copyright". It asked for the Freddie "Radio Go Go" Gorilla sculpture, which Norfolk artist Mik Richardson took three days to create, to be removed from public view. Mr Richardson told the BBC the order its removal was "absolutely shocking". Mr Richardson was paid £800 to design and paint the gorilla and he explained "I'm a mural artist and I have to be very careful about copyright" adding "I didn't copy the suit exactly. I alter enough so that it's fan art, rather than a copy of it. The "Radio Go Go" gorilla is one of 53 life-size gorillas decorated by Norfolk artists and displayed on the streets of Norwich over the summer. An additional 67 baby gorillas, painted at local schools, made up the 120-strong public art trail. The Freddie Mercury gorilla sculpture will be repainted with a "new and exciting design" and should be back in place within 10 days.

A Kickstarter campaign to raise money for a sequel to Maurice Sendak’s “Where the Wild Things Are” has run into a problem after the estate of Maurice Sendak who write the original objected to the new project. The project, a poem entitled “Back to the Wild,” written by Geoffrey O. Todd with illustrations by Rich Berner, involves a sentimental journey for Max as he returns with his daughter, Sophie, to see the “Wild Things” 30 years later.

I have to be brief in this post, as I am off to the Exit  Festival in Novi Sad, Serbia, and and the parallel GO Group conference on green events: but this one caught my eye: after our previous reports about the impact of Russia's new copyright laws, it seems that  Russia's top social network "VKontakte" is in negotiations to find a way for its users to listen legally to the music from the world biggest record labels’ catalogues. CEO and founder of "VKontakte", Pavel Durov, told Vedomosti that the social network was together with Sony Music, Warner Music and Universal Music are looking for options to accommodate the music industry’s interests "without affecting the Russian internet users."

A new research paper by University of Illinois law professor and Bournemouth University scholar Paul J. Heald titled "How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)" seeks to explain why on Amazon there are three times more books available from the 1850s than from the 1950s - and the blame reportedly comes down to the copyright industries  - works in the public domain are more likely to stay in the marketplace than are works that are owned, or orphan works but in particular copyright owners with business priorities might not see sufficient value in a given copyright at a given moment. But if a work is available to all, it's far more likely that someone, or maybe lots of someones, someone will find it worthwhile, and potentially profitable, to publish it. As Heald points out, copyright owners spend a lot of time and money pushing policymakers for longer copyrights tend to provide the "incentive to create" - But it seems that Heald's study shows that the incentive to create requires a relatively short copyright life. Once the big money has been made, copyright ownership is often of only marginal benefit to the owner. If the margin is deemed too small to invest in distribution of a work, the public is deprived of that work until the copyright runs out. You can download the paper here.

The Copy Cat - marvellous mousetastic morsels to muse over

Hot off the press comes news regarding the litigants in Meltwater. A media monitoring company has referred the Newspaper Licensing Agency’s pricing structure to the Copyright Tribunal because it says charities are required to pay "spectacularly unfair" fees. Cutbot, which provides media monitoring services in the form of online links to news stories, said the NLA’s pricing structure, which Cutbot said is based on the number of employees organisations have, was unfair on charities, which pay a combined total of more than £1m a year to the NLA.

And in other copyright news, Walt Disney Co’s Marvel Entertainment must go to trial to defend itself against a copyright claim by Gary Friedrich, who claims he now owns the comic book character “Ghost Rider”, a motorcycle-riding superhero with a flaming skull. Friedrich claims he first came up with the idea for Ghost Rider in 1968, then assigned his rights to Marvel, which published the first “Ghost Rider” comic book in 1972. Friedrich claims in his suit that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. Marvell argued that Friedrich assigned his renewal rights to it in a work-for-hire agreement he signed in 1978. The U.S. Court of Appeals in Manhattan have now reversed a lower-court ruling by Judge Katherine Forrest in favour of Marvel, allowing Friedrich’s claim to go to trial.

Chinese national Xiang Li has been sentenced to 144 months in US federal prison on charges related to a website which distributed more than $100 million worth of pirated software.  U.S. Immigration and Customs Enforcement said this was one of the most significant copyright infringement cases ever uncovered. Between April 2008 and June 2011, Li engaged in over 700 transactions through which he distributed over $100 million worth of  pirated software to over 400 customers located in at least 28 U.S. states and over 60 foreign countries. These software products were owned by approximately 200 different American software manufacturers, ranging from large corporations to small businesses.  Li’s customers included those in embargoed countries in the Middle East, employees of foreign governments and federal government employees and contractors holding security clearances in the United States. More than one-third of the unlawful purchases were made by individuals within the United States, including small business owners, government contractors, students, inventors and engineers. Li will be deported to China after serving his sentence.

Pandora, the US based digital innovator that has just bought  FM radio station KXMZ-FM, in Rapid City South Dakota, seemingly for a seat at the table of the Radio Music Licensing Committee (RMLC) and presumably to attempt to reduced the online royalties it pays to the American music publishers via the music collecting societies, ASCAP and BMI, is facing a new legal challenge from BMI. Pandora itself launched legal action against ASCAP late last year when negotiations failed to go its way, and now Billboard reports that BMI has filed a lawsuit after Pandora terminated its licence with the collection agency in October last year, seeking a new agreement: BMI had proposed an increase in fees to Pandora that it felt were consistent with market rates and the growth in popularity of streaming music, and accounted for those music publishers which were withdrawing from the collective licensing system in the digital domain which included Sony who then directly licensed Pandora – but at higher rates than BMI.   http://www.billboard.com/biz/articles/news/digital-and-mobile/1566909/bmi-files-suit-against-pandora

Two Arab TV stations that allegedly broadcast pirated content have been taken off air by a major satellite provider, as legitimate media firms step up a campaign for better copyright enforcement in the region. Panorama Comedy is no longer broadcasting via the Nilesat satellite, while a related channel Panorama Action also came off the air this weekend. Industry figures allege that both channels, which are believed to be based in Egypt, are involved in illegal broadcasting of films to which they do not own the rights. 

As Russia braces itself for the introduction of a tough new anti-piracy law, the major labels have begun blitzing Russia’s social networks, including Russia’s main social networking site vKontakte, with copyright takedowns. The removal en masse of illegal music by the huge social networking site causing outrage among its users, who are now attempting to ‘encrypt’ their music uploads. Russian-hosted services – vKontakte included – will soon face a new legal environment due as responsibility for illegal uploads shifts towards them A new law approved by  the State Duma on Friday pushes the responsibility of swiftly removing infringing content to the services and service providers, who otherwise may find themselves blocked at the ISP level. VKontakte, with 40 million visits a day,  allows its users to upload music to their accounts for anyone to play and as a result the site has become one of the largest repositories of unlicensed music anywhere in the world. The scale of the takedowns become apparent when searches for popular artists such as Rihanna, Adele, Beyonce, Amy Winehouse and Coldplay all began to draw blanks. The user backlash was swift and vocal, with some complaining that their entire collections had been deleted. More on Torrent Freak.

The Screen Production Association of Australia has warned about a proposed easing of copyright laws with SPAA’s executive director Matthew Deaner blasting recommendations by the Australian Law Reform Commission (ALRC).  That “thinking is out of touch with commercial reality and shows no understanding of the issues facing our sector,” he told Screen Australia’s Jobs, Dollars, Hearts and Minds conference in Canberra. “These views, if left uncorrected, would undermine many legitimate sources of income.”

And finally - who can't resist this headline “This One Page Could End The Copyright War Over Happy Birthday” .

IFPI welcome Russian ruling

IFPI, the organisation representing the international recorded music industry worldwide, has welcomed the latest in a series of rulings by Russian courts against vKontakte, the country’s leading social networking site that facilitates the "mass distribution of copyright infringing music". The Arbitration Court of St Petersburg and Leningrad ordered vKontakte to pay damages of 550,000 roubles (€13,718) to SBA Gala Records, an independent Russian record label and licensed distributor for EMI Music’s international repertoire, for its role in facilitating the illegal distribution of 11 unlicensed sound recordings online. vKontakte enables any user to upload files containing copyright infringing music to its social networking platform, then offers its other users the opportunity to search for the tracks and the ability to stream them, and download them using apps and browser extensions. It is Russia’s most popular online entertainment platform with more than 110 million registered users and is one of the top 50 most visited sites in the World. 

The IFPI have also announced the re-launch of a newly redesigned www.pro-music.org/ website - a simple information resource for anyone looking to find out more about legitimate digital music services and copyright law across the world. First launched in 2003, Pro-Music was created by IFPI in partnership with a coalition of global music industry partners including independent record companies (IMPALA), performers (GIART), managers (IMMF), publishers (IMPA and ICMP), retailers (GERA) and musicians’ unions (FIM). It gives precise and up-to-date information about the world’s 500 legal music sites. The site has two main features: (i) a comprehensive directory of links to licensed music services, listed by type of service and by country and (b) an information portal with simple guidance about copyright law, a guide on how to access music safely and legally (available in nine languages), and links to useful educational resources and reports about the industry. To reflect the growing choice of digital music services available, the site now breaks down all the services by type (download, subscription, and ad-supported), as well as by territories across the globe. The site reflects the rapid development of the digital music business over recent years. When launched in 2003, Pro-Music listed just 20 services in the whole of Europe, and iTunes had just launched in the US, selling one million downloads in its first week. Consumers could choose from up to 200,000 tracks. Today, "consumers from over 100 countries worldwide can choose from more than 26 million tracks, across around 500 different services. They have unprecedented choice in how they access music: buying on-demand, streaming, subscription or listening free with ads, on myriad digital music players". Digital music now accounts for one-third of recorded music revenues globally, valued at $5.2 billion in 2011. 

Recording Industry In Numbers 2012 edition  (the 'definitive source of recorded music market data') is available now from www.ifpi.org