The Battle Over Public Performance Rights Of Old Music Heats Up: NY Rejects, Supreme Court Petitioned

from the not-done-yet dept

For many years now we've been covering the ridiculous legal disputes over pre-1972 sound recordings. Without going into all of the history, the short version is that while music compositions have long been covered by copyright, the actual sound recordings were not until the early 1970s, going into effect in early 1972. Under the legal regime at the time, the 1909 Copyright Act, it was widely accepted that sound recordings could not qualify for copyright under federal copyright law until that law was changed in the run-up to the 1976 Copyright Act. However, due to a lot of lobbying, many states set up either state-based copyright regulations, or a common law regime through the courts, that recognized certain copyright-like exclusive rights in sound recordings. These were all basically wiped out with the 1976 Act, which included a preemption clause that basically said all copyright is now federal and state copyright law is wiped out. That left a gray area, though, for pre-1972 sound recordings, which technically weren't covered by federal copyright law, but it was unclear if state law applied. That created some problems, including extending the length of copyright on those sound recordings way, way, way beyond when they would have gone into the public domain.

A few years ago, we wrote about how these state laws were potentially leading to the permanent loss of classic jazz recordings that might never reach the public domain, and which no one can actually listen to. There's an easy solution to this, which is just to extend federal copyright law to pre-1972 sound recordings and put them under the same regime as everything else (which has it's own problems, but it's better than the mess we're in now). But, of all things, the RIAA and record labels have rejected this, mainly because they see these state laws as a great tool to squeeze extra money out of companies (and to avoid those works ever reaching the public domain).

After years of arguing over what to do about pre-1972 works, the recording industry finally just started suing everyone over the use of pre-1972 sound recordings. The key issue was about public performance rights. To understand this, we have to wade further into the weeds. Federal copyright law gives copyright holders a number of "exclusive rights" under copyright. The ones you mostly hear about are the reproduction right and the distribution right. But there's also the right to prepare derivative works and the right "to perform the copyrighted work publicly."

That public performance right was a relatively new concept, and had never been seen in the various state copyright regimes prior to the 1976 Copyright Act that then (mostly) abolished state copyright laws. In fact, public performance rights in federal copyright explicitly excluded sound recordings -- until 1995 when a new copyright law extended public performance rights to sound recordings, but solely for digital radio services (and not to radio, restaurants, stores, bars, etc). But the recording industry's theory was that even if sound recordings weren't under federal copyright law, when federal copyright law created a public performance right, that right magically moved over into state copyright law as well... and, magically, it applied to all the stuff that federal copyright law said it didn't cover (though, at the same time, they insist that things like the DMCA's safe harbors do not translate into state copyright laws -- which is a neat trick).

The lawsuits to date have been a mixed bag. Sirius lost some early rounds, upsetting decades of consensus about copyright law. The first case it lost was in California, but soon after it lost a case in New York as well, even as the judge admitted this upset decades of consensus. A court in Florida eventually sided with Sirius, but the company then quickly settled with the RIAA.

However, the case in NY was appealed and Sirius has now won on appeal. This is a pretty big deal. The full ruling is long, but worth reading. As the court rightly notes (and as we did back when the original decision came out, only to be mocked by copyright maximalists) this would upset decades of widespread consensus over what state copyright laws covered, and that makes no sense at all:

Indeed, it would be illogical to conclude that the right of public performance would have existed for decades without the courts recognizing such a right as a matter of state common law, and in the absence of any artist or record company attempting to enforce that right in this state until now. The absence of a right of public performance in sound recordings was discussed at the federal level for years and became acutely highlighted in 1971, upon enactment of the Sound Recording Amendment, and again in 1995, upon enactment of the DPRA. At those times, all interested parties were placed on notice of the statute's limited rights for post-1972 sound recordings. Although parties do not lose their rights merely by failing to enforce them, the fact that holders of rights to sound recordings took no action whatsoever to assert common-law protection for at least the past four decades -- when the absence of a comprehensive federal right of public performance for sound recordings was clear -- supports our conclusion that artists and copyright holders did not believe such a right existed in the common law.

Instead, common sense supports the explanation, articulated by the Third Circuit, that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales

The court notes that, yes, the industry has changed due to technology, but that's no excuse for the recording industry to suddenly pretend that these rights existed for decades and everyone ignored them until now.

Simply stated, New York's common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now.

Given that, the court says, if there needs to be such a right, it should be created by the legislature through laws, not the court making it up as it goes along. The court further notes that Congress carefully analyzed this issue, and it would be wrong for courts to rush in -- especially since without the balancing act of legislators, it might create a right that (you guessed it...) the record labels would use to scoop of money without giving any to the artists:

We cannot ignore the fact that Congress studied the nature and scope of the right to the public performance of sound recordings for nearly two decades before revising the federal statutes to recognize a limited right. Indeed, in 1976, Congress "considered at length the arguments in favor of establishing a limited performance right, in the form of a compulsory license, for copyrighted sound recordings, but concluded that the problem require[d] further study".... As directed by the Copyright Act of 1976, the Register of Copyrights submitted a voluminous report in 1978, recommending that Congress enact a limited right to control public performances of sound recordings. Not until 1995 did Congress take action on that recommendation and enact any such right and, even then, the right it created was a narrow one circumscribed by a nuanced regulatory scheme limited to digital transmissions of post-1972 sound recordings.... Moreover, as part of that statutory scheme, Congress included a requirement that the copyright holder pay a portion of the royalties to the recording artist; even if we were to recognize a common-law copyright to public performance, there is no guarantee that the artists would receive any portion of the royalties, as many copyrights are apparently held by the record companies. Ultimately, it cannot be overstated that, if this Court were to recognize a right of public performance under the common law, we would be ill-equipped -- or simply unable -- to create a structure of rules to properly guide the application of that right.

There is a dissent, that says the court can just use federal copyright law's public performance rights and move them over to state copyright law, but the majority opinion points out what a mess that would create.

While the dissent notes that the federal law reflects Congress's balancing of the varied and competing interests involved, this only highlights that a legislative body -- not the courts -- should make decisions regarding such a right. Additionally, it would be highly unusual for this Court to simply adopt federal statutes as the embodiment of the scope of a state common-law right. Moreover, as a practical matter, not all aspects of the complex federal scheme can be directly incorporated under our common law. For example, in the DPRA, Congress provided a means of determining reasonable rates and royalty payments, including a dispute resolution system.... However, state courts have no authority to require the federal Copyright Royalty Judges to adjudicate challenges to royalty rates on pre-1972 sound recordings ... nor do we have the authority to create a New York State version of that dispute resolution system.

There's also a somewhat weird concurring opinion, that agrees that there's no public performance right, but based on nothing at all, theorizes that services like Spotify and Apple Music (which are not parties to this particular lawsuit) may have issues with violating the exclusivity in publishing rights.

With respect to the fourth step on my continuum, certain Internet broadcasters -- such as Apple Music, Spotify's premium subscription, Rhapsody, and Amazon's Music Unlimited offering -- permit users to peruse a catalog of millions of songs and to "call them up on any device, including [one's] phone, anytime [one] wants"....

In determining whether there is a common law right of public performance for recordings fixed prior to February 15, 1972, we necessarily have occasion to speak to the nature and the limits of such right. In the realm of federal copyright law, "publication" is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending".... To allow a user to regularly, specifically, and directly access an exact sound recording "ondemand" is not to facilitate the "public performance" of such recording, but to publish that work and therefore to infringe upon the right of the copyright holder to sell it ....

[....]

We must recognize that the rental or lease of sound recordings fixed prior to February 15, 1972 by Internet broadcasters who provide the public "on-demand" access to such recordings is a form of publication under copyright law.

It seems weird and unnecessary (in the extreme) for a judge to try to address a totally different situation, one that the court wasn't fully briefed on) involving parties who aren't even a part of the lawsuit. Obviously the concurring opinion has no precedential value, but it's troubling that the judge would jump to such a conclusion anyway.

Of course, with this ruling conflicting with other rulings, this still seems like an issue that the Supreme Court is going to have to weigh in on. And... just last week, the Supreme Court was petitioned to hear another case involving pre-1972 works. This is another one that we've been following as well, where the record labels sued the online video site Vimeo, mainly over employee uploaded "lipdubs" of various songs. Part of the issue in that case was whether or not the DMCA's safe harbors applied to those pre-1972 sound recordings. While a district court rejected most of the arguments by the label, it did accept that pre-1972 sound recordings might not qualify for DMCA safe harbor protections.

The 2nd Circuit appeals court overturned that ruling earlier this year, noting that it would make no sense at all for the safe harbors not to apply to pre-1972 works, because that would undermine the very purpose of the DMCA safe harbors. Capitol Records is asking the Supreme Court to overturn the 2nd Circuit on that issue -- which may or may not get to the other issues related to pre-1972 music... but it would be nice for the Supreme Court to sort this all out one way or the other.

Filed Under: copyright, music, new york, performance rights, pre-1972 sound recordings, public performance rights, supreme court
Companies: capitol records, siriusxm, vimeo

Major Record Labels Use Lawsuit Against MP3Skull To Try To Backdoor In SOPA

from the another-backdoor-attempt dept

Another week, another attempt by the legacy copyright players to find a way to enact SOPA via the backdoor. As we've been covering quite a bit lately, the Sony hack has revealed how "site blocking" (the key part of SOPA -- which is more accurately described as censoring parts of the internet) is still a major priority for the the legacy copyright industry, and they're exploring all sorts of ways to make it happen, from new lawsuits to new legislation to trade agreements to pressure on third parties to local politicians to the International Trade Commission to attacks on encryption and more.

It appears that the strategy of using lawsuits is now well underway with the major labels all teaming up to sue the site MP3Skull. That site has been around for a while, and is one quite frequently cited by copyright maximalists as an example of a "bad" player in helping people find unauthorized copies of music. At first I wasn't even sure if it was worth covering the lawsuit as it seemed rather typical of similar lawsuits that the legacy entertainment industry has filed against a variety of sites and services. Frankly, I don't know nearly enough about how MP3Skull works to have much of an opinion on the legal basis for the lawsuit, but it does seem odd that the labels are suing in Florida, when they're mostly based in NY and MP3Skull is most likely based in Russia. I'm guessing the MPAA's win against Hotfile in Florida may have something to do with the choice of venues.

But the reason this story is worth covering has little to do with MP3Skull itself. Rather, it's the remedies the labels are asking for: which is basically to have the court issue an insanely broad order that no one can ever point anyone to MP3Skull's websites or in any way help MP3Skull. Basically, the record labels are asking the court to pretend SOPA is the law despite it failing as a law:

...entry of an Order, pursuant to Section 502 of the Copyright Act (17 U.S.C. § 502), 28 U.S.C. § 1651(a), and this Court’s inherent equitable powers, (A) enjoining Defendants and all third parties with notice of the Order, including any Web hosts, domain-name registrars, domain name registries or their administrators, from facilitating access to any or all domain names, URLs and websites (including, without limitation, www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe Plaintiffs’ copyrights;

(B) requiring domain name registries (including VeriSign, Inc.) and/or registrars holding or listing Defendants’ domain names and websites (including, without limitation, www.MP3Skull.com and www.MP3Skull.to) through which Defendants infringe Plaintiffs’ copyrights to: (a) disable www.MP3Skull.com, www.MP3Skull.to and any related domain names specified by Plaintiffs through a registry hold or otherwise, and to make them inactive and non-transferable, and (b) transfer Defendants’ domain names to a registrar to be appointed by Plaintiffs to re-register the domain names in Plaintiffs’ names and under Plaintiffs’ ownership;

(C) enjoining all third parties with notice of the Order from maintaining, operating, or providing advertising, financial, technical or other support to MP3Skull and any other domain names, URLs or websites through which Defendants infringe Plaintiffs’ copyrights, including without limitation www.MP3Skull.com and www.MP3Skull.to; and

(D) enjoining all third-party distributors of applications, toolbars or similar software with notice of the Order from distributing any applications, toolbars or similar software applications that interoperate with any domain names, URLs or websites through which Defendants infringe Plaintiffs’ copyrights, including without limitation www.MP3Skull.com and www.MP3Skull.to.

That's a lot of text, but what it's saying is that the labels want the court to issue an order that the labels can then wave around to basically anyone, saying they cannot provide any services to the site and cannot link ("facilitating access") to MP3Skull. The labels chose their target carefully. It seems unlikely that MP3Skull is going to show up in a Florida court to defend itself if the site really is run by a group of mysterious folks in Russia who haven't revealed themselves. Thus, there's a half decent chance that a judge could just issue a default judgment, and possibly just sign off on giving the labels exactly what they're asking for. This doesn't always happen in default cases, but certainly is more likely when there's no real adversarial hearing to point out how insane and questionable the proposed remedy is.

Courts should generally try to avoid putting burdens on third parties entirely unrelated to the case in question. The labels must know this, but are hoping that without an adversarial process, they can present a very one-sided (and potentially misleading) story, and get the kind of ruling it wants, and then use that as a precedent for as long as they can.

Whether or not MP3Skull itself broke the law (and it's certainly possible the site did), everyone should be extremely concerned about the excessive remedies being sought and the way the labels are looking to get a judge to effectively pretend that an extreme version of SOPA is already the law.

Filed Under: copyright, russia, site blocking
Companies: arista, atlantic, capitol records, elektra, emi, mp3skull, riaa, sony music, universal music, warner music group, zomba

Judge Adjusts MP3Tunes Ruling, Blasts Everyone

from the some-good,-some-bad dept

We've been following Capitol Records' (EMI) lawsuit against MP3Tunes and Michael Robertson for a long time now, in part because the lawsuit has been going on forever, with lots of back and forth (and it's still at the district court level!). Back in March, the jury hit Robertson with a bill for over $40 million for his personal involvement with MP3Tunes. As we noted, there were plenty of issues with the ruling, especially with the idea that MP3Tunes was "willfully blind" in creating its music locker. Robertson challenged many of the jury's findings, and we noted that the most important one was the willful blindness.

The judge, William Pauley, has now ruled and it's a mixed bag of just about everything, including the judge berating both parties for their approach to this lawsuit. On the whole, Robertson still loses big time, but not quite as big as before. And, on the issue we found most important -- willful blindness -- the judge has overruled the jury, noting that under the standard in the Viacom v. YouTube case, MP3Tunes was not willfully blind (except for one track where they had been alerted to an infringing copy). That's big and very important, given the potential chilling effects the willful blindness ruling would have had on other startups in the digital locker space.

Red flag knowledge requires awareness of facts that would have made specific instances of infringement objectively obvious to a reasonable person.... General knowledge is insufficient. For example, knowledge that a high percentage of content on a domain is infringing does not establish actual or red flag knowledge of particular instances of infringement.... In this case, MP3tunes lacked even general knowledge. Even if MP3tunes tracked domains posting infringing files, a fact not in evidence..., MP3tunes would still need to investigate how much content the domain hosted before it could calculate what percentage was infringing.

To ascribe red flag knowledge to MP3tunes because it was possible for MP3tunes to research and identify other instances of infringing content hosted by these domains and sideloaded by users would "mandate an amorphous obligation to 'take commercially reasonable steps' in response to generalized awareness of infringement." ... But the DMCA imposes a duty on providers to track repeat infringement by users, not third parties....

The same reasoning disposes of the willful blindness argument. Imputing knowledge to MP3tunes would impose an obligation to affirmatively monitor content, which would contravene section 512(m)'s clear instruction that no such obligation exists.... Therefore, Robertson's motion for judgment as a matter of law is granted as to his liability for secondary infringement of tracks sideloaded by users from these domains.

This is the good news from the ruling. Robertson also more or less won on the issue of whether or not the cover art images that showed up in MP3Tunes were infringing. That was one of the many ridiculous side notes in the whole thing.

One other thing that turned out somewhat well was on the question of whether some of the penalties given to Robertson by the jury were unconstitutionally excessive. This is a claim that has previously been tried (unsuccessfully) in the famed Jamie Thomas Rasset and Joel Tenenbaum trials. But here, it actually worked somewhat. The court goes through the different factors to determine if a monetary award is excessive, given the actual harm, and concludes:

Viewed holistically, the punitive damages award violates due process.

Still, the judge argues there's plenty of reasons to punish Robertson, just not to the punitive damages tune of $7.5 million as the jury originally decided. The court reduces that to $750,000, but offers EMI the chance to hold yet another trial just over this issue (which would only add yet another chapter in this incredibly long saga). And of course, none of this even touches on the possibility of appeals (from both sides), which may still happen...

However, there's plenty of worrisome aspects to this new ruling as well. After the willful blindness issue, our biggest concern was the tertiary liability claims that EMI was making against Robertson. That is, we've now seen that secondary liability is a possible for copyright infringement (i.e., you can be guilty for someone else's infringement), even though that makes little sense. However, in this case, EMI advanced an even more tenuous argument: that Robertson was tertiarily liable for MP3Tunes' secondary liability of its users direct infringement. Unfortunately, the judge says this is fine, arguing that while the judge in the Napster case rejected such a theory, the judge in the Limewire case accepted it, and thus "tertiary liability" is a perfectly reasonable thing. That's going to have some serious chilling effects -- just wait and see.

The court also makes one interesting note concerning the Aereo ruling. EMI sought to use the Aereo ruling as evidence that MP3Tunes was guilty of "public performance" of the works as well, but the judge (thankfully) shut that down, noting that the Supreme Court in Aereo was clear that the ruling only applied narrowly to that specific case:

Plaintiffs also argue that the Supreme court's opinion in Aereo establishes that the third-party websites performed the work publicly. But the Supreme Court expressly excluded "novel issues not before the Court, as to which 'Congress has not plainly marked [the] course.'" ... Because the third-party domains here are not "substantially similar" to a community antenna television provider, they are beyond Aereo's reach.

Phew. Aereo bullet dodged there, for now.

Then we get around to the berating. The judge gets on the EMI execs' cases for how they treated the case, and their ongoing refusal to reveal the dates of the releases of various songs, despite being asked repeatedly. But the real slamming comes for Robertson, who apparently put on quite a show on the witness stand. While that may work in Hollywood movies, or made-for-CNN trials, it doesn't often work in real life, and it appears not to have worked here. The judge's own description of Robertson's appearance indicates that no one bought the performance at all:

This Court observed Robertson's demeanor on the witness stand. No transcript can capture his whole affect; you really had to be there.

The judge then reposts Robertson's somewhat lengthy and bizarre discussion of childhood abuse, which seemed to serve no purpose other than to (try to) tug at the heartstrings of the jury. The court (and the jury) were not impressed:

This seemingly rehearsed, five-minute fable-like narrative left the jury nonplussed and Plaintiffs' counsel shell-shocked. It was a dramatic presentation. Even if true, Robertson's decision to spin this yarn backfired on him. The jury saw it for what it was--a transparent attempt to tug at their heartstrings. Plainfiffs' counsel failed to appreciate what the jury grasped and reflexively moved for a mistrial claiming unfair prejudice. But Robertson's manipulative conduct only prejudiced him and that prejudice was not unfair. In denying Plaintiffs' motion, this Court observed "[j]urors see through performances, and the Oscars are over for this year." The jury's verdict demonstrated that this Court's observation was spot on.

Ouch.

Filed Under: copyright, michael robertson, red flag knowledge, secondary liability, tertiary liability, willful blindness
Companies: capitol records, emi, mp3tunes

Jury Hits Michael Robertson With Estimated $41 Million Infringement Bill Over MP3Tunes

from the excessive? dept

Following last week's decision by a jury that Michael Robertson could be held personally liable for songs that he "sideloaded" into his MP3Tunes music locker via the site's Sideload.com feature, the jury has now issued a verdict so complicated that no one is quite sure how much Robertson is being ordered to pay, but it's believed to be in the range of $41 million. The verdict seems questionable on a variety of levels, not the least of which is that MP3Tunes apparently had, and followed, a clear DMCA takedown policy (which an earlier court ruling had found to be sufficient). Where this case became more complicated was over the question of whether or not the company had "red flag knowledge" of infringement and whether Robertson himself was liable, in that he'd "sideloaded" certain songs that he'd found publicly available elsewhere online into his music locker. The details of the apparently very complex ruling will be important, but anyone who runs a cloud computing service might want to pay attention to this case, as it's going to be a rather important one as it moves through the appeals process.

Filed Under: copyright, infringement, jury, michael robertson, sideloading
Companies: capitol records, emi, mp3tunes

Major Labels Back To Going After Vimeo For Its Lipdubs

from the promoting-music-is-piracy! dept

You may recall that, back in 2009, a bunch of the major labels filed a copyright infringement lawsuit against online video site Vimeo, paying particular attention to the fact that the site had popularized "lipdubs" in large part due to this quite popular lipdub by Vimeo's own staff of the song Flagpole Sitta by Harvey Danger.

Lip Dub - Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

While EMI insisted that that particular video and others like it were doing incalculable harm to itself and the musicians it represented, the lead singer from Harvey Danger actually noted that the video made him "incredibly happy" as it helped increase the popularity of the song.

Either way, that lawsuit sat on the shelf for a while, as the judge suggested that it ought to await the outcome of the somewhat similar Viacom/YouTube lawsuit. After that lawsuit got sent back to the district court by the appeals court, the major labels are apparently getting restless and have sought to revive the case against Vimeo, by seeking a summary judgment in their favor.

The case is a bit more complex than the YouTube case, which may spell trouble for Vimeo (and owners IAC), but that doesn't mean that the labels are staying away from a whole bunch of absolutely preposterous arguments. The best thing that the labels have going for them in their argument is the fact that Vimeo employees posted videos that had infringing content. The DMCA safe harbors protect a website from user behavior, but not their own. So, legally, their argument seems a bit stronger on that front, but culturally, it still seems like a dumb argument, as highlighted by the singer's comments above. Most people don't think lipdubs should be illegal, because that seems silly. Lipdubs are about people celebrating and promoting the music they love in creative ways.

Really, that's the crux of this lawsuit. While Vimeo may be in legal trouble, it really highlights the basic cultural divide at issue here. People who put together lipdubs spent a ton of time and effort to creatively enhance the music they love and share it with the world in a cool manner, which does not replace the music, but tends to advertise it. For those unfamiliar with the basics of copyright, saying lipdubs are illegal just feels wrong, even if there may be some legal backing to it.

Making things perhaps somewhat trickier for Vimeo is the fact that it does somewhat aggressively monitor the content on its site for other issues, and doesn't allow a variety of other types of videos. The labels use this to imply that it is actively ignoring music copyright while blocking all sorts of other content:

Except for music, Vimeo strictly controls, monitors, and curates (in its words) the audiovisual works it copies, performs, and distributes. It prohibits – and uses its personnel and tools to review, monitor, and delete – all sorts of videos, including television programs, movies, and movie trailers, as well as “gameplay videos,” “commercial” videos (such as product promotions or real estate tours), “sexually explicit” videos, and “fan vids,” among others.... It enforces its discretionary and subjective guidelines to eliminate content that is not “Vimeoesque.”... All in order to mold its website and control its image.... Despite its pervasive involvement in and control of the content on its website, Vimeo does nothing to limit the infringing use of music on its website.

That may sound damning, but it's not as strong as it sounds. Determining whether or not a video includes infringing music is not as simple as the paragraph makes it sound. Vimeo has no way of knowing whether or not the video maker properly licensed the song in question in most cases. The other things it monitors for are much easier for it to determine. This is a major issue that supporters of copyright law often ignore.

The labels' attack on lipdubs is really kind of ridiculous when you think about it:

One of the early “creations” by Vimeo’s founder was a video format in which he “lip synched” to a commercial, copyrighted recording, synchronized the recording into the video during editing, and uploaded the video, making it available to every Vimeo user.... He named this “a lip dub,” and it was promoted as the “signature” Vimeo video genre, something that “put us [Vimeo] on the map.” .... As Vimeo and its users know, these popular lip dub videos, by definition, copy and incorporate copyrighted music without consent or license. ... (If Vimeo “suddenly started to ban videos with copyrighted music, like lipdubs, then I would be pissed but I would have to realize it’s their final decision.”) That also is apparent from Vimeo’s instructions on its home page on how to create lip dubs.... (“Like a music video. Shoot yourself mouthing along to a song then synch it with a high quality copy of the song in an editing program.”).

Lip dubs were heavily promoted. Vimeo provided a “Lip Dub Stars” channel, labeling it a channel “we like” and securing commercial sponsorship for it.... Lip dubs were featured as a “Vimeo Obsession” on Vimeo’s home page.... “Lip dub” became one of the top seven key words that drew visitors to Vimeo ..., and appeared (in several variants) in an internal chart of top “searches per day” on the Vimeo Website

Of course, one could make an argument that many lipdubs could be considered fair use, as being transformative. But, the labels assume that, by default, they all must be infringing.

Furthermore, among the more dubious arguments made by the labels is claiming that Vimeo's decision to not use a tool to filter out copyright infringement is the equivalent of "willful blindness." This is wrong. The law does not say that sites need to make use of filters and other tools to find possibly infringing works -- in part because a tool cannot properly assess if a work is infringing. They also make the argument that because Vimeo put "lip dub" in meta tags it's proof that they were promoting infringement. That seems very weak for a number of reasons, not the least of which is that search engines haven't used meta tags in ages. Also, the labels argue that because Vimeo offered licensable songs for sale to videomakers it knew that it was committing and encouraging infringement. This seems particularly bizarre. It's attacking Vimeo for actually doing the right thing and helping its users license music. But, just because they do that, it doesn't give them direct knowledge of whether or not users licensed music elsewhere. Oh yeah, the labels also -- ridiculously -- claim that pre-1972 songs are not subject to the DMCA, despite multiple courts rejecting this argument.

All that said, it still seems likely that Vimeo may have an uphill battle here. The fact that employees uploaded infringing works is going to make the case difficult, even if there are reasonable arguments for why they did it. The filing also has a bunch of quotes suggesting general awareness of infringement on the site, but "general" awareness is not enough to lose DMCA safe harbors. You need to be aware of specific infringement, and it's not entirely clear that that's true. There's one example of someone saying they weren't sure if something was licensed and offering to make a copy without music just to be safe, but that's not the same as knowing that the effort is definitely infringing. The other part that might come back to bite Vimeo is the lack of having a "repeat offender" policy for its DMCA takedowns. This is something that has tripped up others as well. The law requires such a policy, but it's unclear if Vimeo actually had one until about the time it was sued.

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today -- and how they help spread it. It's really shameful to see them on the attack, rather than figuring out ways to support it.

Filed Under: copyright, dmca, employees, lipdubs, safe harbors
Companies: capitol records, caroline records, emi, riaa, vimeo, virgin records

Bad Lawsuit, Worse Timing: Beastie Boys Sued Over Infringing Samples On Seminal Albums

from the well-that's-just-goddamn-lovely,-isn't-it? dept

Well, this is just sad. When we reported the unfortunate news of Adam "MCA" Yauch's death, we pointed to the EFF's call for an appropriate tribute to the beloved artist: an end to the legal war on sampling. The Beastie Boys produced some of the earliest sample-based music—including their seminal Paul's Boutique, widely seen as one of the best and most influential albums ever—just before the courts started coming down hard on sampling, more or less entirely tossing out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases. Most experts agree that, today, an album like Paul's Boutique could never be officially released, since licensing the hundreds of samples used would cost exorbitant amounts—but that hasn't diminished the album's importance, nor has it stopped countless producers from continuing to work with unlicensed samples and release their work as bootlegs. In other words, the law does not match reality: sampling is a valid and vital form of creativity that can and will continue, even though nowadays it's either impossibly pricey or just illegal. What better tribute could there be to one of the fathers of sample-based music than to finally officially legitimize it as the important (and amazing) art form that it is?

Instead, we get the opposite. AllHipHop reports that, in a bout of incredibly unlucky timing, music label Tuf America filed a copyright lawsuit against the Beastie Boys the day before Yauch's passing. At issue are samples from Licensed to Ill and Paul's Boutique, which Tuf America claims were taken from a handful of their songs.

Tuf America said they did a thorough sound analysis of the tracks in question and concluded that the Beastie Boys illegally incorporated elements of the songs without permission.

To complicate the matter, Tuf America claims The Beasties and Capitol Records continue to profit off the album, by way of anniversary and commemorative releases of Licensed To Ill and Paul’s Boutique, which was released in 1989.

Tuf America is seeking a trial to determine the amount of punitive and exemplary damages, if any.

One would think that the simple fact that a "thorough sound analysis" was necessary means this is clearly a case of transformative work, but unfortunately, as mentioned, the courts have pretty much completely eliminated that defense when it comes to sampling. Moreover, where has Tuf America been this whole time? The Beastie Boys albums came out in 1986 and 1989, and now, a quarter-century later, Tuf America is claiming they deserve a payout? Their legal argument will, by necessity, rely on significant rulings that came out after the albums, which were released under the common sense assumption of the time: that sampling was creative and transformative art that didn't require a license.

The timing here is almost certainly just bad luck, and Tuf America must be rather worried about the PR nightmare this will surely incite. However I can't say I feel that bad for them: even setting aside Yauch's death, I find their actions despicable. They are attacking a piece of classic art just to cash in on someone else's success. If the Tuf samples were really so integral to the success of the Beastie Boys albums, then they would have had plenty of opportunities to capitalize on that over the last two decades. Instead they chose a legalistic get-rich-quick scheme. Shameful.

Last month, when 50 Cent was sued over a sample on a free mixtape he released, I asked when hip-hop's biggest stars will start speaking up about copyright and educating their fans about the fact that the music they love and respect is, in the eyes of the courts, illegal. This new incident might just kick off that process—nobody is going to be happy about what Tuf America is doing, and a lot of people who had no idea that sampling is illegal are going to see the coverage of this lawsuit (which is sure to be far greater than for your average sampling lawsuit) and discover just how broken the law is.

I truly hope this confluence of events can kick-start the necessary momentum to start fixing copyright law and getting the courts to recognize the validity (and fair use/transformative aspects) of sampling. This is not about capitalizing on Yauch's death—he and the Beastie Boys helped open the world's eyes to a rich and unique new approach to music that informed everything that came after, with samples finding their way into countless genres beyond hip-hop and becoming, essentially, an exciting new instrument that musicians everywhere started teaching themselves to play. The introduction of sampling was as important as that of distorted guitars or electric keyboards, and changed music just as much—but since day one, legal respect for sampling has been in steady decline and is now virtually zilch. It would be a wonderful thing if, amidst the tragedy of Yauch's death, we were able to help him give the world one more gift: a new attitude about sampling that will allow the next generation's Beastie Boys to pursue their artistic ideas without fear of being randomly sued 20 years later.

Filed Under: adam yauch, beastie boys, fair use, mca, paul's boutique, sampling
Companies: capitol records, tuf america

Kenny Rogers' Lawsuit Shows The Many Ways That A Major Label Screws Artists (Even The Big Ones)

from the here-we-go-again dept

We've seen this many times before, where famous musicians are totally screwed over by the major labels. A bunch of folks have sent over a summary of Kenny Rogers' lawsuit against Capitol Records (EMI), which highlights the levels to which Capitol Records went to not pay Rogers. The central facet of the lawsuit is similar to that of lawsuits that a number of artists have been filing, concerning whether or not iTunes transactions are sales or licenses -- for which massively different royalty rates apply.

However, there's plenty of other crazy things in the lawsuit, most of which involve an "audit" that Rogers requested from Capitol in April 2007... and which took until March 2009 to complete. Yes, it took two years. For a basic audit just to make sure he was getting the money he was owed. Oh, and the audit showed that he was not getting the money owed. From there, things got worse... with all sorts of stalling and foot dragging, finally resulting in the lawsuit. That stalling included repeated promises to resolve the problems and pay up. Rogers was told at times that the company was "still ironing out a few things," and then later found out that the people he'd been negotiating with were no longer at the company -- replaced by a lawyer who just told Rogers that he would be happy to work with Rogers to "promptly try to resolve the Rogers audit" -- nearly two years after the audit was completed and four years after it was requested.

Among the problems in the audit are a bunch of unprocessed royalties that were put into a "suspense" file for no reason. These kept $76,956 from Rogers. There were also actions in foreign territories where Capitol appears to have ignored the royalties it's supposed to pay Rogers. There were also things as simple as just not reporting royalties on money from record club sales. The company is also accused of playing some tax games to double count taxes to avoid paying royalties. There's also the fact that Capitol charged Rogers the full amount for a video production to his own expenses (i.e., money they'd "recoup" out of his portion of royalties), but they ignored their own contractual agreement that only 50% could be expensed that way.

Then there's the fact that Rogers wants his cut from the money Capitol has received in various lawsuits -- those against Napster, Kazaa, AudioGalaxy, Grokster, BearShare and others. As we've noted in the past, the labels have bent over backwards to avoid paying out such money to the actual artists -- but Rogers wants his piece:

Such lawsuits have resulted in Capitol Records receiving monies from entities such as Napster, Kazaa, Audiogalaxy, Grokster, BearShare, and others. Capitol Records has refused to provide Kenny Rogers with an accounting regarding the amounts actually received. A portion of the monies received by Capitol Records is attributable to the Masters and Kenny Rogers is entitled to that portion of Capitol Records‟ receipts. Capitol Records‟ refusal to account to and pay that money to Kenny Rogers has resulted in Kenny Rogers suffering direct financial harm in an amount that cannot be determined until Capitol Records provides a full, fair, and accurate accounting.

There are a few other charges as well, but those are the big ones. None of this, of course, is to say that it's "ok" to infringe because the major labels are somehow "bad." But it does show just how ridiculous it is if anyone assumes the majors represent the best interests of artists in any way.

Filed Under: copyright, kenny rogers, lawsuits, record labels
Companies: capitol records, emi

Judge Denies Injunction Against MP3 Reseller Due To Lack Of Irreparable Harm... But Says EMI's Arguments Compelling

from the first-sale-is-dead dept

I've said before that I'm skeptical of the idea behind ReDigi -- a seller of "used" mp3s. The company claims it has a system to make sure that if you sell a music file you own, that they then make sure it's deleted from your computer. This just seems dumb for a variety of reasons -- some economic, some technological and some legal. But, most of all, I just don't see people caring enough to make this a valid business. Either way, whether it's dumb or not, the RIAA couldn't let the company actually try something new... so, of course it sued, with EMI subsidiary Capitol Records taking the lead on the case.

Somewhat surprisingly, the judge refused to issue the injunction, calling the case "fascinating" and noting that there were some serious issues to be dealt with concerning first sale rights around copyright (whether or not you can sell a product you bought that is covered by copyright). However, the judge also made it clear that he thinks that the record labels are likely to win in the end, saying that their arguments "look to be compelling." He just didn't issue the injunction because there was no evidence of irreparable harm if the site stayed up, as detailed in the transcript embedded below.

Filed Under: copyright, first sale, markets, mp3s, resale
Companies: capitol records, emi, redigi, riaa

EMI Apparently Forgot Grey Album Disaster; Issues Takedown Of Wu Tang vs. Beatles

from the haven't-we-done-this-before? dept

I'm beginning to think that EMI is trying to commit suicide, given many of its recent actions. Its latest move is to force offline a wildly popular mashup, mixing The Beatles with The Wu Tang Clan., despite it getting rave reviews and lots of attention... and despite a history of similar actions backfiring massively for EMI.

Let's take a look back. Apparently the folks over at EMI/Capitol Records have no sense of history. Back in 2004, DJ Danger Mouse put together "The Grey Album," a fantastic mashup of The Beatles' "The White Album" with Jay-Z's "The Black Album." EMI/Capitol, who holds the copyright on much of The Beatles' catalog went nuts, and started sending cease-and-desists to pretty much everyone, leading to the infamous "Grey Tuesday" on February 24, 2004, where lots of websites posted the album in protest. Years later, EMI admitted that the Grey Album didn't do any harm, but the company didn't care, saying "It's not a question of damage; it's a question of rights." Except, that's not true at all. If no damage is being done -- and, in fact, such a mashup is likely to attract a lot more attention to your back catalog from an audience who might not be that familiar with it, you're making a pretty huge mistake. That's just business.

Of course, EMI/Capitol refuses to learn. A few years later, when someone put together a Beatles/Beach Boys mashup, EMI/Capitol again sent out cease-and-desists and demanded the IP addresses of anyone who downloaded the album.

And here we are today, as EMI/Capitol (who, last we saw, was trying to bootstrap a fake word of mouth viral campaign, after its suits blocked a real viral campaign) is fighting to stay alive, as it is massively in debt, with little hope of getting out of it.

So what does EMI/Capitol decide to do? The same thing that's helped fuel this downward spiral: send out cease-and-desists on wildly popular mashups.

Towards the end of January, word started spreading online of a mashup put together by Tom Caruana and Tea Side Records, called "Wu-Tang vs. The Beatles: Enter the Magical Mystery Chambers." I have to admit, I've been listening to it a lot the last few weeks, and it's really well done. It quickly started receiving rave reviews online. If you listen, this certainly isn't just playing Wu Tang vocals over Beatles instrumentals. As many noticed, the beats are changed significantly to fit with the vocals.

But, apparently, that's not going to satisfy EMI/Capitol. It's not entirely clear what happened, but the album has been removed from where it was originally posted, and the only explanation is a short comment on February 10th:

Had to remove all Wu Beatles material at Capitol Records request

So, yes, as EMI/Capitol are battling for survival, its lawyers thought the best thing to do with their time was to send a cease & desist to an album that might actually get them some attention and sell some Beatles albums -- and they do so knowing how badly this backfired with The Grey Album, leading many to swear off EMI releases. No wonder they're going out of business.

Filed Under: beatles, grey album, mashup, wu tang
Companies: capitol records, emi

EMI Tries Fake Word Of Mouth Campaign To Promote Ok Go

from the yer-doing-it-wrong dept

Well, well. We've written about the band Ok Go a few times here, as a band that definitely does seem to "get" what's going on in terms of how to connect with fans and promote their music well. Many years ago, the band had spoken out against DRM, and, of course, they produced one of the most popular music videos of all time -- the famous "treadmills" video. I would have embedded that video here, but Ok Go's label, Capitol Records/EMI decided somewhere along the line that no one should want to share one of the most viral videos ever, and disabled all embedding. Brilliant.

So, when Ok Go put out a new album with a new "viral video" EMI once again banned embedding, apparently not realizing how this viral stuff works. Ok Go wrote about it, and basically made it clear that they'd tried over and over again to explain this stuff to Capitol/EMI, and the folks at the label simply didn't get the value of making the video viral.

Well, now, instead of allowing a real "word of mouth" viral campaign with the video, it looks like EMI/Capitol has decided to bootstrap a fake viral word of mouth campaign, by sending around emails (and even submitting directly to us) a request to "get a free Ok Go" song if you just Tweet about it. Seriously. So rather than letting people organically share what they wanted to share, EMI is trying to bribe people into promoting something else.

EMI, you're doing it wrong.

In the meantime, the platform that EMI is using for this is easily defeated. You have to log in to Twitter Connect via a special promo page, and it asks you to send a specific twitter message about how you just got a free Ok Go song... but you can edit the message to say whatever you want. And, here's a little trick: if you edit the message to be more than 140 characters, it doesn't actually send to Twitter, and you still get the free song.

And wait, didn't EMI insist in court that it never authorized free MP3s to be available online?

Anyway, the problem here is that EMI is trying to force people into doing things a specific way (not embedding, must tweet), rather than simply being open, sharing and (perhaps) suggesting they share things if they like with a friend. That's much more authentic and real. This feels very fake and corporate. You build trust by actually putting stuff out there and seeing how people respond, rather than bribing them and limiting how they can share.

Filed Under: music, ok go, promotion, viral, word of mouth
Companies: capitol records, emi