Jersey Boys claim has limited appeal

Rex Woodard was the co-author of a biography of Four Seasons member Thomas Gaetano DeVito, jointly created with the musician, and based on a series of interviews and discussions between the pair over a number of years. The pair agreed to be co-authors and share in any profits. Woodard died in 1991 and subsequently DeVito registered the Work at the US Copyright Office, in his name alone. He subsequently granted defendants Frankie Valli and Robert Gaudio (also both Four Season’s members) an irrevocable, exclusive, perpetual, worldwide and assignable licence to freely use the Work and Gaudio and Valli further sub-licensed these rights, which allowed the Work to subsequently form the basis for the screenplay of the hugely successful ‘Jersey Boys’ musical. After the play was first staged in 2005, Woodward’s widow, Donna Corbello, learned of the link in 2007 and amended the US copyright registration in 2009 to include Woodard and brought a claim in the District Court of Nevada against DeVito and the other defendants including Valli, Gaudio and the show’s producers and directors for copyright infringement. DeVito and the other defendants argued that the claim was barred by applicable statute of limitations and that foreign copyright claims could not apply to the claim. Whilst the court found that the action was not time barred (as Corbello only learned of the infringements on 2007) and the court also dismissed claims about a lack of personal jurisdiction, it agreed on the matter of foreign copyright claims and that only US copyright law could apply and in the case of the claim against Jersey Boys Record Limited concerning the release of a ‘Cast Album’ of sound recordings from the Broadway show the court found that this was not substantially similar to the Work to infringe. But most importantly the court said that whilst Woodward was co-author of the Work, DeVito’s assignment of rights to Valli and Gaudio and the onward licence to the show’s producers were valid as they pre-dated the plaintiff’s copyright claim and the court granted partial summary judgment in favour of all defendants save DeVito, meaning Corbello’s claim could proceed to trial, but was now solely against Woodward’s co-author DeVito.

Corbello v DeVito el al 2:08-cv-00867-RCJ-PAL

Top Techno Tunes Takedown Trouble

I don’t know that much about the world of electronic music but I was sent an interesting read about a chap in the USA called Modular Punk who allegedly managed not only to copy, rename, re-brand and release fifteen tracks actually produced by Italian DJ and techno producer Alex De Stefano, he also copyrighted said tracks in the USA and claimed ownership of such. Perhaps unsurprisingly, said Mr M Punk (real name Felipe Cersosimo, aged 27) had a JD in Intellectual Property and International law apparently from the American University, Washington College of Law, and for a few weeks had ‘his’ tracks out on sale, distributed by his own label and distributors Dark Digital Underground, Iris Distribution and Perfection Recordings and he even managed to get them onto all major digital distribution platforms (including iTunes) and even got the onto the Billboard, MTV Meteor and MySpace techno charts. So, a now very peeved De Stefano tried to take action and a number (but not all) of the digital outlets removed the offending tracks BUT of course Mr Punk had those very annoying copyrights registered in the USA and so what ensued then appears to be a battle of DCMA ‘takedown’ procedures from Mr De Stefano which prompted what I understand to be DCMA ‘counter-notification’ letters and emails between websites, Mr Punk and Mr De Stefano – meaning De Stefano , whilst asserting ownership, was often somewhat on the back foot. It appears it all ended up well for Mr Stefano although a few websites took some persuading, and if you want more the interesting world of DJs, producers and remixers, have a look at Analogik here http://analogik.com/articles/20668/modular-punk-stole-15-tracks-from-alex-di-stefano and more on Modular Punk here http://toptechnotracks.com/modular-punk-interview-september-2011/#.TzOUtly7U8Y and some Alex de Stefano tracks on Stormcloud here http://soundcloud.com/alexdistefano

'How to Fix Copyright': seminar opens for registration

The 1709 Blog has another seminar coming up, as previously announced, on Tuesday 3 April 2012.  We have a speaker, a subject and a time (author, commentator and music-lover William Patry, "How to Fix Copyright" and breakfast, 8.30am to 10am -- though registration begins at 8am).  Now we also have a venue, thanks to the generosity of London-based international law firm Bird & Bird LLP in their lovely premises at 15 Fetter Lane, London EC4 (you can find the venue here).

If you'd like to attend, please email the 1709 Blog c/o me here and let me know, using the subject line "Fixit".  There is no admission fee and there are no other registration formalities. It may take me a little time to acknowledge your emails, but don't panic -- there's plenty of time till April.

This blogger has fond memories of William Patry's Stephen Stewart Lecture on Metaphors and Moral Panics (noted by the IPKat here), which also had a cameo appearance of Shaun the Sheep. Let's see if William, and Shaun for that matter, can put up an equally good show this time!

How porn-friendly is copyright?

Time to dress
to remain in
copyright paradise?

An interesting case is currently pending before the San Francisco Division of the US District Court for Northern District of California (reports and comments available here and here).

In November last, porn producer Hard Drive filed a complaint for copyright infringement against a single John Doe defendant for sharing copyright-protected adult video Amateur Allure Jen on BitTorrent. Among the nearly 1,500 "Does" was Ms Liuxia Wong, a California resident. 

Before suing them, Hard Drive had sought to settle the action for $3,400, asking potential defendants to act promptly to avoid being named in the lawsuit. In its settlement letter to Ms Wong, Hard Drive had informed her that she was liable for copyright infringement and that she might have had to pay statutory damages up to $150,000.

Eventually, Ms Wong did not settle the action and Hard Drive brought a lawsuit against her and others before the San Francisco Division of the US District Court for Northern District of California.

On 31 January 2012 Ms Wong filed her defence.

Ms Wong claims that she never actually downloaded the film, did not tell anyone else to download it, and did not know anyone was using her internet service to download the video. She also argues that the settlement letter sent to her was designed to coerce her into settling the case despite the absence of any facts supporting liability against her.

In addition - and most interestingly - Ms Wong claims that Amateur Allure Jen is not a copyright-protected work, under 17 USC Sections 101 and following. In particular she claims that, pursuant to the US Constitution's Copyright Clause, copyright is authorised only for works which promote the progress of science and useful arts. Amateur Allure Jen would fail to meet these objectives, in that: 

1) it does not promote the progress of science; 

2) it does not promote the useful arts; 

3) it is admittedly adult pornography; 

4) it depicts obscene material, and 

5) it depicts criminal acts and/or conduct. 

Furthermore, when making the film, Hard Drive violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy. Accordingly, Ms Wong seeks relief as that the court issue an order declaring - inter alia - that she is not liable to Hard Drive for copyright infringement, in that Hard Drive's work is not copyright-protected tout court.

Though traditionally obscenity was not protected by copyright law, recently US courts found otherwise. For instance, in 1979 decision in Mitchells Brothers, the US Court of Appeal for the Fifth Circuit held that

"Congress has concluded that the constitutional purpose of its copyright power ... is best served by allowing all creative works (in a copyrightable format) to be accorded copyright protection regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward ... Further, if Congress were receptive to subject matter restrictions on copyright, there are many reasons why it would be unlikely to choose obscenity as one of those restrictions. Obscenity law is a concept not adapted for use as a means for ascertaining whether creative works may be copyrighted. Obscenity as a constitutional doctrine has developed as an effort to create a tolerable compromise between First Amendment considerations and police power. It is an awkward, barely acceptable concept that continues to dog our judicial system and society at large. The purpose underlying the constitutional grant of power to Congress to protect writings is the promotion of original writings, an invitation to creativity. This is an expansive purpose with no stated limitations of taste or governmental acceptability. Such restraints, if imposed, would be antithetical to promotion of creativity. The pursuit of creativity requires freedom to explore into the gray areas, to the cutting edge, and even beyond."

Comments from our readers on how obscene copyright can actually be, are - as usual - very welcome.

Hey Vevo - where's our royalties?

Independent US music publisher Matt Pincus has highlighted the fact that whilst online video platform Vevo (owned by Universal, Sony and the Abu Dhabi Media Group) earned $150-million dollars in revenue in 2011 and supplies roughly 40% of the content streamed on YouTube, it has not paid over a single dime to independent music publishers or their songwriter clients in the USA saying that that they “have not received any money from Vevo. Ever. That's right. Vevo: $150 Million. Independent publishers and songwriters: Zero.” In a very interesting piece in The Wrap, Pincus puts the blame very squarely at the doors of Universal and Sony saying that whilst Vevo does pay over royalties to record labels they don’t pay music publishers because “the major record companies have warranted that they have the right to license songs to Vevo on behalf of publishers, backing up that claim with an indemnity” and then rely on “controlled composition” clauses in their recording contracts with artistes to avoid paying anything to use the songs. Pincus explains it all here and it is worth a read, ending up with the opinion that “Are record companies to blame for relying on shoddy language to withhold royalties, or is it Vevo's responsibility to insure that the songwriters that helped it pull in $150 million this year share in their success? Whatever the case, this issue of fairness must be addressed.”

And more on Vevo here http://www.businessweek.com/technology/content/dec2009/tc20091211_309336.htm

Dear Hollywood: An Open Letter to the Hardworking Men and Women in the Entertainment Industries

I reproduce this pity letter from the EFF (Electronic Frontiers Foundation) in full, making no apology or comment. Others may care to ......

Dear Hollywood,

You don’t need us to tell you that your position on anti-"piracy" laws has been unpopular recently. Last month’s historic protests, with millions of Americans registering their opposition, have made that point pretty clear. Instead, we’re writing today to tell you that the Internet can be great for creators and their community, but your own leadership refuses to recognize and take advantage of its promise. It seems they’d rather spend your membership dues on lawyers, lobbyists and astroturf than innovation. We suspect many of you are realizing this, especially when you see how successful new business models can be.

We humbly suggest that you stand up and tell them to either embrace the age of the Internet or get out of the way so that new, forward-thinking industry leaders can take their place.

Hollywood’s leadership painted the push for the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) as a defense of your jobs — a stance that was cynical at best, as they know the only jobs the bill would save were those of their lawyers. What is worse, by framing a stance against SOPA and PIPA as a betrayal of creators everywhere, they’ve poisoned the debate about the legislation and attempted to mislead you into fighting for bills that won’t put a dent in online infringement but will interfere with the development of ways for creators like you to profit from Internet technologies.

An honest discussion of proposed legislation needs to start with the questions: Is this law necessary? And is it the best solution to the problem? Americans stood up against SOPA and PIPA not because they are “corporate pawns,” as MPAA Chairman Chris Dodd says, but because the answer to both of these questions is a big no.

For one thing, although the studio heads and MPAA leadership claim this legislation is about your jobs, they’re curiously silent about the fact that entertainment spending and revenues are up across the board. In the words of one recent study, the sky isn’t falling — it’s rising. So if you’re concerned about your job, please realize the primary threat does not come from unauthorized downloading. The actor Wil Wheaton suggests that the problem might be closer to home:

I have lost more money to creative accounting, and American workers have lost more jobs to runaway production, than anything associated with what the MPAA calls piracy.

Moreover, as the publisher Tim O’Reilly has explained for a decade now, “obscurity is a far greater threat to authors and creative artists than piracy.” The Internet is the best tool for publicity and distribution the world has ever known – if you know how to use it.

And though the handful of executives at the top might not have realized that yet, individual creators among you have reached this conclusion and are already profiting from it. At last week’s Sundance festival, even as Dodd and others were lamenting the web’s impact on film, ten percent of the films were financed by pledges through the online fundraising platform Kickstarter. And after film, music projects are Kickstarter’s second largest funding recipients. The music publishing platform Bandcamp now regularly pays out a million dollars to artists each month through sales made on the site. Some of those sales are even made to people who were looking for free content, but were enticed by the friendly purchase process.

Even some label executives, like Craig Davis at EMI, have realized that unauthorized downloading is "a service issue." Or to put it simply, as the musician Jonathan Coulton has written: "Make good stuff, then make it easy for people to buy it. There’s your anti-piracy plan."

The tech community loves creativity, and it wants to support artists, but it’s got a real problem with the people who run Hollywood. As long as it’s worried about Hollywood leadership doing damage to civil liberties and online freedom, the kind of profitable partnerships we know are possible will be difficult to make.

We’ve seen this movie before, and we know how it ends. The right answer to the question that the Internet raised isn't to demonize the tech community and innovators. That strategy failed dramatically against earlier technologies like the VCR, which MPAA President Jack Valenti compared to "the Boston strangler" in a 1982 testimony to Congress. Of course, that innovation opened up the home video market, which is now the source of nearly half of all studio revenue.

SOPA and PIPA were a step in the wrong direction, but it’s not too late to turn this ship around. Please, tell your leaders to support innovation — or get new leaders.

Best of luck,
The Internet

https://www.eff.org/deeplinks/2012/02/dear-hollywood-open-letter-hardworking-men-and-women-entertainment-industries

Doubts creep up in MegaUpload case

With MegaUpload boss Kim "Dotcom" Schmitz having been refused bail for the second time, there is a never ending stream of comments on the rights and wrongs of the case online. But one of the more intersting article (kindly passed on to the 1709 Blog by our friend Andy Johnstone) is on the Register and says that "The Stanford Law Schools Center for Internet and Society has added a voice to the growing number of lawyers that expect America’s charges against Kim Dotcom and the “Megaupload conspiracy” to collapse in court" suggesting that there may be some confusion between the appropriate civil and criminal law codes - and standards of proof and 'guilt' that might apply to Schmitz and his fellow defendants. Anyway, you can take a look yourself here and its an interesting read.

In potentially related news, it seems that the BitTorrent search engine BTjunkie has shut down voluntarily in the wake of the MegaUpload takedown and arrests, and the confirmation of the Pirate Bay convictions by the Supreme Court of Sweden, with the sites operators saying "This is the end of the line my friends. The decision does not come easy, but we've decided to voluntarily shut down. We've been fighting for years for your right to communicate, but it's time to move on. It's been an experience of a lifetime, we wish you all the best!".

http://cyberlaw.stanford.edu/node/6795

Head in the Cloud, Nose in the Statute Book

According to Digital Music News and Bloomberg, Capitol Record's US suit against online digital music re-sale site Redigi will be hammered out in open court. Rejecting Capitol's request for a summary judgement, District Court Judge Richard J Sullivan, pronounced the scrap a "fascinating issue" and said the re-sale of digitally acquired music raises important statutory and technological questions including those relating to cloud-based computing. Richard Sullivan's drink of choice here Messages of support and/or sympathy cards to be sent here.