Right royal ruckus up over new Bollywood copyright proposals

It seems that Indian film music composers may have to look for other avenues of employment if Bollywood film producers make good their threat and stop producing films in protest against proposed new copyright legislation – or find music from other sources. The Times of India reports that a Parliamentary Standing committee has recommended that the Copyright Amendment Bill 2010 should provide that film producers give authors, lyricists and composers an ongoing royalty from a film – and shared ownership.

Award winning producer Yash Chopra, who along with other film producers had made several presentations before the Committee said, "Ours is the entertainment business, yet like the alcohol or tobacco industry we have to pay huge taxes in the form of VAT, service tax and stamp duty. Now if the Copyright Bill is passed it will be the end of us as it will be very difficult to make films." Echoing this was producer Boney Kapoor who told the Times of India: "We are already burdened with so many taxes and if this is implemented it would be difficult to sustain ourselves”. Another producer said that if the revisions are implemented iit will only lead to “the death of Bollywood music” as it will not be economically viable for producers to have India music in their films.

The planned proposal is to protect the rights of authors (scriptwriters, composers and lyricists) who have in the past usually been paid a fixed fee by producers, who then controlled all rights in the music and lyrics - in effect a “buy out” of the author’s rights. The revision would mean that although the producer of the movie will be the first owner of the music when used as part of cinematograph work, the lyricist or composer will be first owner for all other purposes. The producers are not happy with this and Chopra said "If we will be left with no rights how will we monetise any of the property of a film and give them royalty?" adding, "In 2013, we are celebrating 100 years of Indian cinema but looks like by then we may be writing our obituaries." Perhaps more tellingly, Ameet Naik who represented the producers' body before the panel said, "The bill in its present form is tilted towards established authors. Producers will think twice before hiring new ones and there is every chance even if they get work [they] will not be given credit" with (I imagine) the film companies claiming to be the ‘author’ and therefore owning the copyright – not too unlike the US and UK music industries in the fifties and sixties when managers, record label executives and publishers often put themselves down as co ‘authors’ to receive an ongoing share of song writing royalties. Chopra added to this saying "Several composers and writers just want the money and are not bothered about credit, all they insist is to just give them one amount and that is it” adding that the changes would dramatically alter the Bollywood funding model and leave producers exposed in recouping their investments. Chopra said "Most songs in films abroad are taken from albums, which is totally different from how music is made in India. Music for any film is a team contribution and not an individual's work. How can they be first owners?" It seems that an alternative new business model might be one where the film producers set up ‘independent’ record labels and music publishers – acquiring copyrights from songwriters in a different way, which they can then of course can still control and feed into their films.

Understandably, Lyricists, composers and singers welcomed the news with producer-director-composer Vishal Bharadwaj saying “As for the law favouring composers and lyricists, I am an artiste first and I feel it is a historical and large-hearted decision. At least this will secure their future now. So many of my songs have been used in serials and commercials but nothing comes to me” adding “Composers, writers and lyricists get royalty abroad, so why not we in India".


Read more: http://timesofindia.indiatimes.com/city/mumbai/Royalty-recommendation-to-lyricists-composers-not-music-to-producers-ears/articleshow/7050253.cms

Da Bears, Da Dance, Da Lawsuit

Da Bears.  Perhaps one of the most famous phrases in 1980s American football.  The Chicago Bears had a lot of cultural staples that decade, Mike Ditka, Refrigerator Perry and the 1985 Superbowl Shuffle (video available here).  But as the 25th anniversary of the Superbowl Shuffle approaches, there’s trouble in the Windy City.

Photo credit: “It’s Like Making a Trip
to Mecca if You’re a Bears Fan”
CC-BY-SA Senor Codo

Julia Meyer, owner of the copyrights to the video and song Superbowl Shuffle has brought suit against cable network Viacom, owner of MTV and VH1.  Meyer alleges copyright infringement under the US Copyright Act, misrepresentation under the Lanham Act, deceptive trade practices under Illinois state law and unjust enrichment.  (Full brief pdf)
What did Viacom do?  It played the Superbowl Shuffle video on MTV and VH1, not the whole video, but clips of it.  The shortest clip, 16 seconds, the longest, a minute and a half.
According to Meyer,

“The Defendants’ conduct significantly damaged the market for the ’85 Bears Shuffle Video. [Because now that people have seen it, they’ll know better than to buy it?]  The 25th Anniversary of the ’85 Bears Shuffle Video will take place during late 2010 and early 2011, which has created additional interest from the public in the ’85 Bears Shuffle Video.” [What’s more likely to create additional interest is that the Bears could make it to the Superbowl this year.  They’re currently first in their division, just ahead of the Green Bay Packers.]

Copyright Infringement

Meyer’s claims that by airing the Superbowl Shuffle clips on MTV and VH1, Viacom’s actions were “willful and deliberate, and in utter disregard for Meyer’s rights.”
All I can do here is speculate.  Once upon a time, MTV and VH1 actually played music videos, full music videos, all of the time.  That suggests that the Networks are familiar with the standard process for licensing videos and would not have aired the videos without going through that standard process.  (Unfortunately, I am not familiar with the standard process and have no idea if there is any sort of set compulsory licensing in place for music videos or if each video’s airing must be negotiated with the rightsholder.)
On the other hand, most of the videos MTV and VH1 show are produced and owned by major record labels.  This video is different.  It is not owned by a label, but by a entrepreneur who licenses the video via a company in Illinois.  Did Viacom try to take advantage of this situation by airing the video without going through the normal licensing practice?  The brief filed by Meyers gives us no information about any relevant background facts in this area.

Deceptive Trade Practices and Unfair Competition

The claims under the Lanham Act and Illinois State Law (815 ILCS 510/2) are similar.  Meyer and co-plaintiff Renaissance Marketing Corporation alleges that by showing clips of the Superbowl Shuffle on VH1’s program One Hit Wonders and MTV’s MTV News, Viacom engaged in “unfair and deceptive trade practices in that it likely caused confusion and mistake by the public.” 
At first, this sounds pretty ridiculous.  How would the public confuse a football team with some cable channels?  Would the public really think that the airing of the videos means the Chicago Bears are endorsing VH1 and MTV?  But the alleged confusion isn’t over affiliation or endorsement.  Meyer’s claim is that the public will be mislead into believing that she authorized the use of the video on the programs.
It’s possible viewers believe the owners of videos approve the playing of their videos.  But I wonder how realistic it is that the public would believe that for the video uses at issue here.  The MTV clip was part of a news show including interviews with members of the 1985 Chicago Bears team.  Does the public assume permission is granted whenever a very brief (40 seconds in this case) clip appears on the news as part of a story?  And the real question, would the public assume permission is given by the video owners for videos that appear on VH1’s One Hit Wonders?  Being known as a one-hit-wonder isn’t usually a good thing.  The public might assume that if specific permission were needed, there wouldn’t be any videos on the show.
The deceptive practices and likelihood of confusion claims are plausible but tenuous at best.  My guess is the case settles; I’ll be surprised if it goes to trial.

Ignorance of the Law, an Excuse?

Throughout my childhood my father used to tell me, “Ignorance is no excuse for the law.”  It didn’t matter whether I was jaywalking or learning the hard way that glass jars of pickles don’t bounce; ignorance was no excuse.  Well it looks like there may be one time when ignorance is an excuse.  But I’m in doubt.

Criminal Charges under US Copyright Act Dropped

Many readers may have been following the USA v. Crippen case on other sites.  - Wired has a fairly detailed running account of the case. – This is the case in which California resident Matthew Crippen was criminally charged for violations of the US Copyright Act.  It was to be the first criminal case addressing a violation of the Copyright Act’s restriction against circumvents technical protection measures (TPMs) designed to protect copyrighted works.  “Was” because this past week the prosecution dropped the charges.
The many reports on the prosecution’s decision list a number of factors leading to the decision to drop charges.  Rumors of prosecutorial misconduct and concerns about the jury learning of crimes committed by the prosecution’s witnesses are two of the reasons mentioned.  (See Wired, above, and TechSpot for more on these reasons.)  But it seems like the main reason, which is related to both of these, is Judge Gutierrez’s decision that the prosecution would need to prove that Crippen knew he was violating the law.  (“The government said it would have dropped the case if that more onerous standard was required.” Wired.)

Looking for “Knowledge”

I’m still trying to figure this one out.  According to Wired (specific article link), “Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.”  Maybe there’s a nuance that got missed or misinterpreted somewhere between the judge and Wired.
Crippen was modifying X-Boxes, allegedly so that they would play pirated games.  From what I can gather, the statute Crippen was charged for violating was 17 USC 1201.  I am not sure if it was part (a) for “circumventing a technical measure” or part (b) for “circumventing protection afforded by a technical measure.”  However, the rest of the provisions in each section are parallel so we can look into the knowledge element without knowing with which specific provision Crippen was charged.

Subsections (A)

The first requirement, in § 1201 (a)(2)(A) and (b)(1)(A), is that the main purpose of the service be to circumvent a measure that effectively controls access to the work.  This could have a  knowledge element, requiring the defendant to know that the changes he was making would give access to works that were previously not accessible.  But knowing you’re getting access to something you couldn’t access before is not the same as knowing you are breaking the law.  So our knowledge of committing a crime being an element isn’t here.
-- NOTE: There’s a number of elements within this each Subsection.  I am only looking at potential knowledge elements.  For a great in-depth look at each element of the crime, see this post on bunnie studios by someone who was called as an expert witness in this case. --

Subsections (B)

The next subsection, (a)(2)(B) and (b)(1)(B), requires that any commercially significant purposes aside from allowing access to previously restricted items are limited.  No knowledge element there.

Subsections (C)

The last subsection requires that the service be marketed for use in circumventing a TPM.  This requires the same sort of knowledge element as subsection (A), the knowledge that the service is providing access to restricted works.  Again, there doesn’t appear to be anything suggesting that in order to violate this law the person circumventing the TPM needs to know that circumventing TPM is illegal.

So Where’s the Knowledge

Is there a knowledge element elsewhere in the DMCA or in the US Copyright Act that applies to this section?  What am I missing?  Do any of our readers have an idea why the judge would require the prosecution to prove that the defendant knew he was breaking the law?

Viacom lodge Google appeal

Viacom will appealed in the $1 billion copyright infringement lawsuit it brought against Google's YouTube in 2007, which a federal judge dismissed earlier this year. U.S. District Judge Louis Stanton ruled in June that YouTube should be considered a service provider under the provisoins of the Digital Millennium Copyright Act (DMCA), and therefore not liable for copyright infringements committed by users of the service under the 'safe harbour' principle. Judge Stanton also noted YouTube's good faith efforts to remove copyrighted videos when presented with valid takedown notices from copyright holders (http://the1709blog.blogspot.com/2010/06/youtube-wins-viacom-copyright-suit.html) It is understood that Viacom's appeal, argues that Judge Stanton ignored the fact that YouTube knew it was hosting copyrighted material, but did nothing because that copyrighted content was attracting more viewers than its user-generated videos.

http://www.dmwmedia.com/news/2010/12/03/viacom-files-appeal-1-billion-youtube-copyright-lawsuit and see the IPKat at http://ipkitten.blogspot.com/2010/06/breaking-news-google-wins-1-billion.html

The Gaga Files: German hackers face trial

Two young German computer hackers have been accused of stealing pre-release recordings from artists including Lady Gaga, Justin Timberlake, Ke$ha and Kelly Clarkson and selling the tracks online, in a number of instances forcing record labels to rush release singles to enjoy some returns from legal downloads. Dusisberg's chief prosecuter said that a 17 year old school boy and a 23 year old unempployed man (indentfied only as Deniz A and Christian M) were under investigation for using trojan malware to hack into artist's computers. It seems trhey remained undetected for over twelve months. It is also alleged that they also accessed a compromising photograph of one artist with a plan to extort money from the featured musician. One of the pair, who both lived at home, used the online name 'DJ Stolen' and they attached the Trojan to MP3 files sent to artists, their labels and their management companies. Police were alerted after a fan of Kelly Clarkson alerted her management to unreleased songs being sold online. The pair are said to have earned over $13,000 from sales of the songs and the accused face up to five years in prison and large fines if convicted. It is not known what songs were stolen or the losses suffered by the artists and their labels from the unschedlued 'releases'. The Dusiberg prosecuter said that investigations would be completed in January.

http://www.dmwmedia.com/news/2010/12/03/hackers-steal-lady-gaga-timberlake-mp3s-sell-them-online

Picture Nick Cordes at Glastonbury 2009 (C) 2009

Machinima – mixed messages about alternate universes

If your copyright is infringed, you can object, ignore or approve.

‘Machinima’ are homemade movies put together using imagery from computer-games. The gaming industry, seeing the promotional value of these derivative works, seems to approve. World of Warcraft, for example, sanctions machinima in its ‘Letter to the Machinimators of the world’. Along with the approval come conditions, the most important of which is that machinima must be non-commercial.

This is a copyright story with a happy ending but that doesn’t mean to say it isn’t interesting, as Gaetano Dimita revealed to a Blaca meeting last month.

‘Letter to the Machinimators of the world’, for example, is a copyright licence – though not a contract as the user is not providing any consideration. It has an uneasy relationship with the End User Licence Agreement (EULA). While the Letter says ‘you are permitted to create machinima productions’ the EULA says ‘you agree that you will not, under any circumstances … create derivative works based on the Game’. In copyright terms, this appears to be a direct contradiction – you are allowed and not allowed. From the perspective of contract law, the Letter is not a contract, so is unenforceable by the user, while the EULA is a contract, so is enforceable by the computer-game company.

If your copyright is infringed, you can object, ignore or approve – or a combination of the above.

OHIM is becoming a ‘true IP agency’

The President of OHIM delivered a speech at the Brussels IP 2010 summit today setting out his vision of transforming OHIM into a ‘true IP agency’ and not just a registration office. It seemed that he was primarily talking about OHIM playing a more active role in the enforcement of trade mark and design rights but could there be implications for copyright? He alluded to involvement in the Commission’s Counterfeiting and Piracy Observatory, which collects data about all intellectual property infringement.

‘Community trade marks and designs are very successful,’ he said, ‘and we have built up a substantial surplus. We have an obligation, and potentially the resources, to do some things to make the whole IP system work better, and that’s what we will be looking into.’

The speech is here: http://oami.europa.eu/ows/rw/news/item1682.en.do

The Internet, it’s a Copyright Feature, Not a Bug

Looked at in terms of copyright, the Digital World was perceived as a bug. The ease of copying led to rampant infringement that harmed creators. In contrast, again looked at in terms of copyright, I submit that the Networked World should be embraced as a feature.  ~ Tom Rubin, Chief Counsel for IP Strategy at Microsoft

It seems like a point that ought to be obvious, the internet is a good thing.  But, Mr. Rubin is talking about the internet solely through the eyes of copyright law, and here, it is hard to argue that the internet has been treated as a problem.  The Digital World doesn’t fit neatly into existing copyright law and, for the past two decades the most common approach has been to try to jam it in forcefully, hammering the new round peg into the old square hole.

Mr. Rubin explored this issue as part of the Intellectual Property in the International Arena: WIPO Comes to Stanford conference hosted at Stanford Law School last month.  As part of the panel “Copyright in a Networked World,”  Mr. Rubin discussed two main needs for a working copyright system in the digital world.  First: speed and scalability.  Content users need to be able to find and license works quickly.  Second, and related to the first: working information sources and databases.  Content users need to be able to find out who owns the rights to a work quickly and easily. 

Mr. Rubin’s full recount of his participation on the Copyright in a Networked World panel is available at the Stanford CIS blog.  Full reading of this short and interesting piece is encouraged.