Month: September 2012

‘First-sale’ case headed to U.S. Supreme Court

With the U.S. Supreme Court’s 2012-2013 term beginning Monday, the justices not only will tackle plenty of headline-grabbing issues — including academic affirmative action and gay rights — they also will help determine the global reach of U.S. copyright law, answering the question of whether an overseas purchaser of a copyrighted work may resell it in the United States without the copyright holder’s permission. The case that is supposed to offer high court review of these matters some time this term is Kirtsaeng v. John Wiley & Sons Inc. involving the first-sale doctrine that entitles the purchaser of a copyrighted work to transfer that particular work without the copyright holder’s permission. Hence, used bookstores, CD stores, libraries, eBay and video rental stores flourish. It is unclear, though, how the first-sale doctrine applies to foreign-purchased works, as occurred when a student from Thailand had friends send him foreign editions of textbooks, which he then resold on eBay to students in the United States.  The dispute has worked its way through federal courts in New York, with the U.S. Court of Appeals for the Second Circuit upholding a lower court’s $600,000 award for copyright infringement, granted to John Wiley & Sons, the publisher, on the basis that the first-sale doctrine did not apply.  The appellate decision (read here) has raised new concerns in the art community, particularly in New York, and in Hollywood.The issue...

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In France, an appellate copyright curb on search

Mon dieu! What kind of legal chain of responsibility are Europeans establishing for online parties for possible copyright violations? The Versailles Court of Appeals has been instructed to enjoin Google from allowing its feature Google Suggest to offer up words like Torrent, Rapidshare and Megaupload.  Because these words might direct users to websites with infringing content, the Court of Cassation has reversed  decisions by the Court of First Instance and Court of Appeals rejecting the assertion that the French recording industry association, SNEP, that Google was facilitating copyright infringement. The summer ruling was based on the French Intellectual Property Code (IPC), Articles L. 335-4  and L. 336-2. These sections prohibit copyright infringement;  they do not discuss contributory infringement, which has led to both commentary on and criticism of the basis of the Court of Cassation ruling.  The court also rendered another opinion on a different related matter, finding that online providers could not be subject to a general obligation of monitoring, based on a law putting in place an e-commerce...

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Tune-up near on satellite radio royalties

Negotiations are well under way among key parties in the music industry over performance royalty rates for satellite digital music broadcasting rights, with, of course, a key role to be played by judges of the Copyright Royalty Board. Talent and stations are tussling over appropriate rates that compensate artists while also considering the continued success of digital music broadcasters via satellite feed. Closing arguments are scheduled for Oct. 16, with the current legislation of 2007 set to expire at the end of 2012. SoundExchange is the sole nonprofit performance rights society selected by the board (which is appointed by the U.S. Library of Congress) to collect statutory performance royalties for 0satellite radio, internet radio, cable TV music channels and other related digital music streaming avenues. SoundExchange argues that the current rates paid by Sirius XM are far below market value, artists are not getting their fair share and there should be an increase from the current rate of 8% of satellite radio revenues to 13%, along with a .5% yearly increase that would set rates at 20% by 2017. Sirius XM has proposed rates of 5% to 7%. Opponents say SoundExchange is seeking way too much, such that if the proposed rate increase took effect, extreme licensing agreements and additional costs on subscribers could suffocate satellite-radio digital-streaming.  (See here.) A bit of context may be worth considering in this...

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Justice yanks plan to collect indecency fine

There were bachelor and bachelor-ette parties, strippers and whipped cream. And while the portrayals, many pixilated, proved sufficiently graphic to have aroused blue-penciled government censors, in the end, it wasn’t just clothes on-screen that got dropped. The Justice Department has yanked its suit against Fox Broadcasting for failing to pay a Federal Communications Commission  (FCC) indecency fine stemming from a 2003 Fox show “Married with America.” The FCC slapped Fox with more than $1 million in fines after its stations aired a racy episode showcasing exotic dancers. Fox and the feds, ultimately, were disputing a few thousand dollars in fines over the terpsichorean entertainment. But that was before the Supremes stepped in over the summer on indecent broadcasting. Let’s strip to the facts in this case: In June, the U.S. Supreme Court held that the FCC could not enforce current policies against past transgressions and must give “fair notice” before taking action against “fleeting expletives” and nudity on live or scripted television programs. The court noted the FCC had offered rules against fleeting expletives in 2004, one year later than when the indecent actions charged against Fox and ABC occurred.  Justice Anthony Kennedy wrote “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”  The broadcasters lacked notice in 2003 that brief nudity or fleeting expletives could be actionable,...

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Will superstars’ raps rap them in court?

Rappers Chris Brown and Drake may suddenly have more in common than just their rumored romantic rivalry over Rihanna and a lucrative career-enhancing beef: In a new essay, Professor Caleb Mason predicts that now that the bottles have stopped flying,  both have evidence boomerangs still flying in their direction as a result of their own song lyrics. A sample: There’s times when I might blow like 50k on a vacation /For all my soldiers just to see the looks on all they faces… I got a lot of friends to come up off the strip for me/The same ones that’ll come up off the hip for me” [Drake, “Crew Love”] Lyrics like these propelled hit songs, paid for a top-shelf nightclub outing that ended in a bloody face-off between the two stars — and now they may now be coming back to haunt them. “How many people call their friends ‘my soldiers?’ ” Mason argues. “And doesn’t ‘come up off the hip’ mean ‘pull a gun?’ ” Back on June 14, some combination of Brown (who was in court on Monday in Los Angeles for a probation hearing), Drake and their entourages got in to a bottle-throwing melee at Club W.i.P. in New York City with expensive and immediate fallout including:  The NYPD immediately shut down the club. New York authorities began considering new regulation of the the multimillion-dollar...

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