Saturday, December 12, 2009

The Battle Over The Beatles: Judge Hits BlueBeat With Preliminary Injunction

I am back from my break for law school exams with plenty of news to catch up on.

First up involves the Capital v. BlueBeat trial that concerned uploading the Beatles songs for 25 cent downloads. The Judge has granted a preliminary injunction, going a step further than the previously issued temporary injunction. This time the Judge went into greater detail about why he finds BlueBeat's "psycho-acoustic simulation" defense:
However, Mr. Risan is very clear on one critical fact: In order to create the recordings on the BlueBeat Website, he admits that he had to create and use a digital copy of Plaintiffs’ Recordings.4 Given this admission, the Court concludes that it is virtually impossible that the recordings on the BlueBeat Website consist “entirely of an independent fixation of other sounds” pursuant to 17 U.S.C. § 114(b). Indeed, although Mr. Risan claims that “artistic operators” made changes to parameters such as pitch, loudness, rhythm, timbre, and space, Defendants’ conduct appears to be substantively no different than the defendants in United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). There, the defendants used “specially adapted electronic tape equipment” to re-record sound recordings, and change them by increasing or decreasing the recording speed, introducing reverberation or echo, eliminating or reducing portions of the musical sounds, and producing additional sounds by synthesizers. Taxe, 540 F.2d at 964. The district court rejected any claim that this re-recording constituted an “independent fixation,” and the Ninth Circuit agreed, stating: “The copyright owner’s right to reproduce the sound recording is limited to recapture of the original sounds, but that right can be infringed by an unauthorized re-recording which, despite any changes in the sounds duplicated, results in a work of ‘substantial similarity.’” Id. at n. 2.

For more information on the recent ruling against BlueBeat, check out analysis by Copyrights and Campaigns Blog and Ars Technica.

Monday, November 23, 2009

Music Monday - Bon Iver

Bon Iver is an upincomming folk rock band fronted by Wisconsin native Justin Vernon. The bands only album thus far is "For Emma, Forever Ago". The majority of the album was recorded in three months in a remote cabin in Northwestern Wisconsin. Songs of note on the album are "Skinny Love" and "Creature Fear". Bon Iver's songs have been used in several TV shows such as Grey's Anatomy, Chuck, and House.

Wednesday, November 18, 2009

Google Scholar Adds Legal Search: Can It Compete with Westlaw or Lexis Nexis?

Google announced this week that its Google Scholar now allows you to search for legal opinions:
"Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar."
A quick search using the terms "copyright infringement fair use" gave me access to several of the major opinions including: Sony v. Universal; Harper & Row; Campbell v. Acuff-Rose; and A&M v. Napster. The amazing thing is that Google Scholar even utilizes links to citations. For example, Google Scholar provided links to 2,704 court cases and legal papers that cited Campbell v. Acuff-Rose.

What Google Scholar does is bring relatively easy access to court cases to the masses for free. However, at present it does not flag negative authority; a must for most lawyers. Google Scholar appears to be a great free source to quickly nab a specific published case. Westlaw and Lexis Nexis just lost a lot of business.

Monday, November 16, 2009

Apple v. Psystar: Apple Granted Summary Judgment in Copyright Infringement Lawsuit

Apple has prevailed in its copyright infringement lawsuit against Psystar corporation. The court granted Apple's motion for summary judgment on Nov. 13th.

Basically, Apple sued Psystar for copyright infringement because Psystar used a modified version of Apple's operating system on Psystar's line of computers called "Open Computers". Apple has three copyright registrations on its Mac OS X operating. Apple alleged that Psystar's "reproduction, modification, and distribution of Mac OS X on non-Apple computers constituted copyright infringement under the Copyright Act and a violation of the Digital Millennium Copyright Act."

Psystar's defenses were "the first-sale doctrine" and that Apple engaged in a misuse of copyright. Psystar failed to convince the court that either defense had merit.

The court granted summary judgment for copyright infringement and violation of the DMCA, but several claims still remain for trial: (1) breach of contract; (2) induced breach of contract, (3) trademark infringement; (4) trademark dilution; (5)trade dress infringement; and (6) state unfair competition under California Business and Professions Code § 17200; and (7) common law unfair competition.

Apple v. Psystar: Court Order Granting Summary Judgment

Psystar’s Response to Apple's Motion for Summary Judgment

Apple's Reply Brief in Support of Summary Judgment

Wednesday, November 11, 2009

Microsoft Bans 1 Million Xbox Live Users for Modding Their Xbox 360's

Microsoft made the bold move this week by banning 1 million Xbox live subscription accounts because Xbox believed those users had modded their Xbox 360 in order to play pirated games. Xbox 360’s have security protections in place that only allows the Xbox to read and play valid and verified game disks. However, you can get a mod chip or other device installed on your Xbox, usually for about $100, which bypasses the inherent protections allowing pirated games to work. Somehow, it isn’t clear yet, Microsoft was able to determine which users had mod chips or other similar mods on their Xbox. The banned users can still play offline; only the online play capability provided by Xbox live was removed.

It is important to note that not only is making pirated copies of video games illegal (assuming no fair use right), but so is modding an Xbox. By modding an Xbox, the user has bypassed the protection put in place by Microsoft that prevent unauthorized disks from being read by the system. The Digital Millennium Copyright Act (“DMCA”) says that “no person shall circumvent a technological measure that effectively controls access to a work.” By modding the xbox, people are violating the DMCA.

Given the fact that Microsoft had the identities and account information of all the people who modded their Xbox, those users should feel lucky that they are only losing their Xbox live subscription and not facing a lawsuit.

Monday, November 9, 2009

Music Monday - Lykke Li

Tonight's Music Monday spotlight shines on Lykke Li (Cheers Will Woods for recommending her). Lykke Li is a Swedish singer who has a unique voice and style. She has been on the verge of stardom for the past two years. She recorded a cover of the Kings of Leon song "Knocked Up" and one of her songs was played in the film Sorority Row. But with her song "Possibility" on the soundtrack to the next Twilight movie, New Moon, she will surely be thrusted into the mainstream.

My favorite song of hers is "I'm Good, I'm Gone". You can listen to an acoustic recording of the song HERE. You can also hear several of Lykke's songs on her Myspace Page.

BlueBeat CEO Hank Risan discusses the Lawsuit and the "Psychoacoustics" Defense

BlueBeat Chief Executive Hank Risan participated in a Q&A with Pop & Hiss, the L.A. Times Music Blog, and went into further detail of how BlueBeat "transformed" the Beatles' songs using "Psychoacoustics".
If you actually listen to our 320 [Kbps MP3] recordings versus the actual CDs, you’ll hear a remarkable difference. They’re created with the intention of recreating a live musical performance. When you listen to them, they’re done in a virtual soundstage of using psychoacoustic simulation, and the intention is to create a live performance -- as if you are there listening to the actual performers doing the work as opposed to a copy or a phonorecord or CD of the work.
Hank Risan went on to say that "Psychoacoustics" is about "how the brain perceives sound. You can then create new sounds that may very well be similar to the original sounds, but you can control how you create those sounds using parametrics like timbre, loudness, other pitch." It sounds like Mr. Risan is argueing that by tweaking the volume and EQ, you can make a fair use copy of someone's music and even sell it as your own. Talk about a stretch...

Friday, November 6, 2009

Digital Graveyard: Database of RIAA Litigation

Ray Beckerman of the blog "Recording Industry vs. The People" has a database of litigation documents from a large number of copyright infringement cases initiated by the recording music industry. This is a great resource for those interested.

Thursday, November 5, 2009

The Battle Over the Beatles: Court Orders Temporary Injunction Against BlueBeat

The Federal Court enjoined BlueBeat today from "selling and streaming tunes by The Beatles and other EMI artists". More over at Copyrights & Campaigns.

Order granting TRO in Capitol v. Bluebeat

The Battle Over the Beatles: Capitol Records v. BlueBeat

Earlier this week BlueBeat began offering 25 cent downloads of the Beatles' catalog of music. Only problem: BlueBeat did not have a licensing right to do so. Further, the Beatles' catelog is not available anywhere legally for digital download. EMI has now filed suit seeking a temporary restraining order. EMI's (Through Capital Records) Complaint, BlueBeat's reply, and EMI's response to the reply are below. Head over to Copyright & Campaigns for analysis of the case.

Capitol Records v. BlueBeat Complaint

Defendants' Opposition to TRO in Capitol v. BlueBeat

Plaintiffs' Reply in support of TRO in Capitol v. Bluebeat

Sued for Filesharing Music: Should You Settle or Allow a Default Judgment

There is no clear answer (is there ever with law?). It often depends on how many songs you are accused of sharing. The statutory minimum is $750 per song; the amount that would be applied in default. So ten songs? $7500. Settling with the RIAA appears to cost around $4000 to $5000.

Ars Technica has an article examining further the two options.

Wednesday, November 4, 2009

Law Prof. Drops Suit Against 'Above The Law' Blog

According to Above the Law blog, Prof. Donald Jones has voluntarily dismissed his lawsuit against Above the Law blog publisher David Minkin and Breaking Media.
Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. But if Professor Jones were to attempt to refile at this point in time, he would encounter a statute of limitations problem.

There was NO SETTLEMENT in this case. Above the Law has made no changes to our prior posts, and we have paid no money to Professor Jones. The case was dismissed by the plaintiff without anything from our side, except a letter from our lawyer.

For analysis of the legal insufficiency of the complaint that undoubtedly led to the voluntary dismissal of the lawsuit, head over to the Copyrights & Campaigns Blog and The Volokh Conspiracy.

Jones v. Minkin Complaint

Tuesday, November 3, 2009

"The Golden Age of Infinite Music"

John Harris writes in an article for BBC News on the ease of obtaining music (by whatever means) and how that has created a generation of musically knowledgeable youth with palettes as well versed as middle aged music lovers. Mr. Harris opines on what a possible and likely future for music will entail:
Empty record shops will be overrun with weeds and old CDs will be used as coasters. Your Madonnas, U2s and Coldplays will prosper, but for anyone further down the hierarchy, the idea of making much of a living will be a non-starter.
While the future looks bleak, Mr. Harris tries to see the positive in the present:
But for now, this is a truly golden age - the era of the teenage expert, albums that will soon have to be full of finely-honed hits and the completely infinite online jukebox.

Cable Modem Modder Indicted

"An Oregon hardware hacker and author has been hit with federal criminal charges arising from his longstanding business of selling unlocked cable modems that can be used to steal extra speed from a broadband provider, or obtain free service. Ryan Harris, known by his pen name DerEngel, was charged in Boston with a conspiracy count, and charges of aiding and abetting computer intrusion and wire fraud." (via Wired: Threat Level)

Ryan Harris (DerEngel) Indictment

"The Download Decade"

Canadian newspaper The Globe and Mail is doing a multi part series: The Download Decade.

In addition to examining the progression of illegal downloading during the last 10 years, The Globe and Mail have collected news stories on downloading going back to the year 2000.

Monday, November 2, 2009

Music Monday - Cinematic Orchestra

Cinematic Orchestra is a UK group whose style is described as a fusion between jazz improv and electronica. However, the song I enjoy the most, "To Build a Home", features a piano accompanied by a string quartet. "To Build a Home" has been played during a number of TV shows including Grey's Anatomy, Criminal Minds, Ugly Betty, and Without a Trace. The pianist and singer in "To Build a Home" is Canadian Patrick Watson. Pitchfork has a review of the album "Ma Fleur" that contains "To Build a Home".

Click HERE to see a live performance of the song.

Click HERE to see a video clip of a very funny and awkward moment on So You Think You Can Dance where contestant Billy Bell dances to "To Build a Home" and one of the judges starts to freak out...

Rappers Lil Wayne and Birdman Sued for Copyright Infringement

According to
The lawsuit says Cash Money Records had [the plaintiff] record some "Italian-styled" repartee in 2006. The suit says his work was used without pay or permission on "Respect" and other tracks from the rappers' joint 2006 album "Like Father, Like Son" and Birdman's 2007 album "5 Star Stunna."

The irony that the work was used on the track "Respect" has not gone unnoticed.

Sunday, November 1, 2009

The Fight Over Fallout: Bethesda Softworks LLC v. Interplay Entertainment Corporation

Two greats in the video game industry are battling it out in the courtroom. On September 9th, Bethesda Softworks LLC (maker of Fallout 3 and The Elder Scrolls III: Morrowind) initiated a lawsuit against Interplay Entertainment Corporation (maker of Fallout, Fallout 2, and Balder's Gate). Bethesda is alleging that Interplay breached an Asset Purchase Agreement and Trademark License Agreement, engaged in Unfair Competition, and infringed Bethesda's Trademark in FALLOUT. Bethesda purchased all rights, title, and interest in the FALLOUT mark from Interplay on April 4, 2007, for $5,750,000. Bethesda asked the court to enjoin Interplay from the use, manufacture, distribution, sale and promotion of Fallout, Fallout 2, Fallout Collection, Fallout Trilogy, and Saga Fallout.

Bethesda Softworks LLC v. Interplay Entertainment Corporation Complaint

The People Who Illegally Download Also Purchase the Most Music?

"People who illegally download music from the internet also spend more money on music than anyone else." Believe it? A new poll held in the United Kingdom says it's true.

"The survey, published today, found that those who admit illegally downloading music spent an average of £77 a year on music – £33 more than those who claim that they never download music dishonestly. ... The poll, which surveyed 1,000 16- to 50-year-olds with internet access, found that one in 10 people admit to downloading music illegally." (via The Independent)

But what does the poll really mean? It could be that almost everyone in the UK who enjoys music has downloaded music illegally, leaving only those that are rather disinterested in music in the non-downloading category. It seems reasonable to believe that those who like music the most, and thus most likely to listen to music, are also those that have at some point downloaded illegally. To me, the poll really says nothing that we can accurately analyze.

Does it really matter if, as the poll suggests, people who download music illegally also buy the most music. The fact that they download some music illegally means that they are likely buying LESS than they would if they couldn't download illegally. Sure, people would not pay full price for every song they download illegally, but the fact that they are downloading it means they place SOME value on the music. If the price point in the market met that value, they would arguably pay for it. Because you can download most songs for about a dollar online, it is hard to believe that people would not buy some of the music they download illegally if they were prevented from downloading illegally.

So, the labels and artists may get MORE money from illegal downloaders than non-downloaders, but they are getting less than they would if the pirates stopped downloading. That's the important point often left out of the discussion.

Saturday, October 31, 2009

Tuneglue: Music Map

Tuneglue is a great web tool to find other bands and artists that are similar to your favorites. You just type in the name of a band and the band appears on your screen with a circle. Click on the circle and you have the option to view the album releases from that band or "expand" which connects the original band with other bands that are similar, creating a web or map of bands.

For example, when expanding the band Kings of Leon, the following artists are connected:

White Lies (currently opening for Kings of Leon on tour)
The Strokes
The Killers
Arctic Monkeys
Cold War Kids

You can argue how much these other bands are really similar to Kings of Leon, but it is a fun tool to discover music you may enjoy.

Takedown Hall of Shame

The Electronic Frontier Foundation have created the Takedown Hall of Shame: a list of the worst copyright and trademark threats against the makers of "creative expression".

Friday, October 30, 2009

Video Lectures on Intellectual Property Law

Academic Earth, named by TIME as one of the top 50 websites of 2009, collects video lectures uploaded on the web and streams them. Lectures on a variety of subjects are available from schools such as Yale, Harvard, Princeton, Berkeley, MIT and Stanford. Of particular interest are four lectures taught by MIT Prof. Keith Winstein concerning intellectual property.
"Topics covered include: structure of federal law; basics of legal research; legal citations; how to use LexisNexis®; the 1976 Copyright Act; copyright as applied to music, computers, broadcasting, and education; fair use; Napster®, Grokster®, and Peer-to-Peer file-sharing; Library Access to Music Project; The 1998 Digital Millennium Copyright Act; DVDs and encryption; software licensing; the GNU® General Public License and free software."

Thursday, October 29, 2009

Is the Album on the Way Out?

Albums aim to contain three hit singles. The rest of the album is usually filler songs whose purpose is to attempt to justify a hefty album price. With the rise of iTunes and similar digital distributors, people are buying fewer albums and more single songs. That behavior is completely rational: why pay $13 for three songs you enjoy plus filler music when you can buy your favorite songs individually for about $1 each. By empowering the consumer with the ability to purchase single songs (and not just the ones the music labels selected to be put on a "single" CD), and allowing consumers to preview songs before they purchase, the concept of the album might fade away. This would be exacerbated if storefront distributors like Wal-Mart stop selling CDs and instead have Kiosks that allow you to basically browse music and burn a CD (or even plug in your MP3 player and download the files).

If consumers have the choice to stop buying filler music, and exercise that choice, it should follow that the economic incentive for recording labels to force artists to record filler songs will be considerably lower. At the very least, the number of filler songs recorded should diminish. Time will tell.

Wednesday, October 28, 2009

Does Online Content Come with an Implied License?

Raymond Nimmer says that it shouldn't in his blog entry Posting as Implied License. It will be interesting to see as various courts tackle this issue if a consensus will be found.

The More They Stream the Less We Share?

The amount of broadband traffic used on P2P file-sharing is now down to 20% in the United States while streamed media nearly doubled to 26% according to the Sandvine's "2009 Global Broadband Phenomena" report (via Ars Technica). This is an important trend that can likely be explained by a number of factors:
  1. Increased availability of free, legally streamed media (Hulu, Pandora, and Lala)
  2. Increased availability of free, illegally streamed media (ch131 and wisevid)
  3. Increased availability of subscription service media providers (Netflix and Rhapsody)
  4. Increased availability of pay-per-view, streamed media (Amazon Video On Demand)
  5. Devices that allow streamed media to be played on TVs (Xbox and Roku)
  6. High profile enforcement efforts by RIAA (Tenenbaum and Jammie Thomas)
All in all, it is easier than ever to access streamed media (legally and illegally) for free or for a low marginal price. As a result, the incentive to download media via P2P file-sharing has diminished. The key to continuing the trend away from P2P file-sharing is for the market to provide users access to free streamed media (supported by ad revenue) as well as subscription models that add addition value. However, with the foolish announcement this week that Hulu will begin charging for access in 2010, the media providers may very well resurrect P2P file-sharing all on thier own.

Tuesday, October 27, 2009

Intellectual Property Podcast

I recently stumbled across the Intellectual Property Colloquium, a podcast that focuses on copyright and patent law. The podcast is a conversation with people in the IP field. Each podcast is about an hour long and can be either streamed or downloaded. Attorney's in California, Illinois, New Hampshire, New York, Tennessee, Texas, and Washington can get CLE credit for listening to the show. An archive of the podcasts can be accessed HERE. The current show asks: can content survive online?

Google to Enter Music Market

Rumors have spread this week that Google is about to announce a new service in which the company will provide a search service that incorporates Google's search power with other music streaming services like Lala and iLike. If done correctly, Google's music service may provide a great source to search for music content (music streams and video) and find lessor known artists. For further information, check out the PC Magazine blog post HERE.

Update: Google Music has gone live and can be accessed HERE.

Monday, October 26, 2009

Music Monday - Joanna Newsom

Every Monday I will mention an artist and song that I recently came across that I really enjoy.

First up is Joanna Newsom. Joanna is a talented harpist and pianist with a very unique voice. In particular, I really enjoy the song "Sprout and the Bean". If you recently watched the movie The Strangers then you will surely be creeped out when you hear the song. "Sprout and the Bean" was played on a vinyl record in the movie. The song fit perfectly with the scene and greatly added to the suspense of the moment. Click HERE to see the music video for Joanna Newsom's "Sprout and the Bean."