Music Row Lawyer (C. Stephen Weaver)

You Tube May Be Liable For Infringing Content

    In 2007 Viacom sued You Tube for copyright infringement.  In 2010 a federal judge issued a summary judgment that YouTube was covered under the “safe harbor” provisions of the Digital Millennium Copyright Act.  The District Court held that the DMCA shielded You Tube from liability for infringing content uploaded by its subscribers.  Most readers of this blog know that You Tube would not be liable unless the copyright owners notified them of the infringing material and You Tube then failed to remove the infringing content from their site.  An exception to the DMCA shield is if a website has “actual knowledge” of infringing matter on their site and fails to take it down.  Waiting for notice from the content owner is not a defense in that situation.

    In the Viacom/You Tube case there was evidence that You Tube turned a blind eye to infringing content on their website unless and until they received a take down notice from the copyright owner.  For example it was reported that a YouTube co-founder responded to an internal email by insisting that a CNN space shuttle clip could remain up for at least another two weeks because it would take the cable news network that long to get a cease-and-desist order.

    Should the District Court have dismissed the law suit?  The 2^nd Circuit Court of Appeals said “no” and sent it back to the District Court for a determination of actual knowledge.  The Appeals court said that a legal doctrine known as “willful blindness” could be applied in some circumstances regarding the Digital Millennium Copyright Act and left it to the lower court judge to determine whether YouTube executives made a “deliberate effort to avoid guilty knowledge.”  (The Tennessean)

    The Appeals Court held that a reasonable jury could have found that YouTube knew of specific infringing activity on its website.

 

Who Owns the Company Social Media Accounts?

    Regardless of the type business you are engaged in, as an employer specific action should be taken to protect your valuable assets.  Social media accounts (Facebook, Twitter, LinkedIn, etc.) are among those assets.  A company’s social media accounts are becoming viewed as more important and valuable in the case of company acquisitions and mergers, stock valuation and due diligence for financial transactions.  The purchaser, investor, etc. is going to want to know who owns the social media accounts and see written proof if the company claims this ownership.  The question is typically whether the employee who creates the account and is the primary user is the owner or whether the employer owns the account.

There has been recent litigation over the matter of ownership of social media accounts and no doubt there will be more.  Examples are Maremount v. Susan Fredman Design Group (employee starts marketing blog for company – employee on sick leave – employer assumes employee’s social media identity and continues blog – employee sues); Phonedog v. Kravitz (former employee refuses to surrender twitter account to employer); TEKsystems v. Horizontal Integration (employer-employee dispute over ownership of LinkedIn account).

And the moral is . . . clarify ownership of social media accounts in employment agreements and company policy manuals.  While most employers today understand the importance of intellectual property, these and similar clauses in employment agreements need to specifically address ownership of social media accounts.

Posted by a Friend - Marty Dodson

This was posted by songwriter Marty Dodson yesterday on Facebook.  This is my world and why I am so passionate about the issue of internet piracy:  "Because a couple of you have asked. Here is a representative story of the fight that songwriters are in to protect our product. Kim Dotcom, owner of illegal downloading site "Megaupload" was recently arrested in the 42 million dollar home that he was renting. He personally was making $115,000 per day from Megaupload and its sister sites. His business model was the equivalent of opening a Walmart-sized store that was stocked with only goods that were stolen from those who made them. Everything in his "store" belonged to someone else. He was making over a million dollars every 10 days, and the people who created the music, movies, or other content were getting paid nothing. I personally have a song video on YouTube (put there by someone else) that has been played over 7 million times. Google paid over $4 billion for YouTube several years ago. I have received nothing for this video. If I had been paid just 1 penny per play, that would be $70,000 in my pocket. Do you see why Google does not want internet piracy to be taken down? They are making billions off other people's content. Meanwhile, friends of mine that are extremely talented writers are losing their writing deals, publishers and labels are closing, and many people are losing their jobs. All we are asking for is a share of what people are making from our music. We don't want government handouts, just protection from criminals. If you can't rob a bank or steal from Walmart, you shouldn't steal from a songwriter, movie producer, actors, etc. Please pay for your music."

Content Providers Wage War Against SOPA

Today I sit here at my desk, just one cog in the wheel, working hard to help support creators and marketers of intellectual property - the culture of our society.  I am saddened by the theives that believe music, movies and literature should be free - and so just take it.  I am saddened by the enemy - the tech industry that is willing to totally destroy American culture and its creators so that they may fatten their wallets.  This morning I read this article in the Wall Street Journal.  What was particularly upsetting to me were the reader comments.

America has long been a world leader in its protection of authors and inventors.  Copyright has been the underlying foundation of that protection.  Now I read more this morning about the power brokers that want to destroy that system and the thieves and fools who are buying into it. 

The latest battle is over the proposed legislation known as SOPA (Stop Online Piracy Act).  This bill strengthens the enforcement of copyright protection by requring internet providers to assist in the battle by banning pirate websites, etc.  That is a very light treatment of the subject and there are definitely some problems with SOPA - such as a big due process issue.  However, the tech industries are telling the public this is a ban on freedom of speech.  If you want to read more about SOPA and the war against creators and their industries just google SOPA - oh - and when you go to google you will find a black banner.  Click on it and you will see Google's diatribe about SOPA.  If you want to read more about the position of those who support the fight against the pirates the visit the website of Fight Online Theft.

"Rogue Websites" Bill Passed by Senate Judiciary Committee

The Nashville Songwriters Association International (NSAI) just released the following press release:

SENATE JUDICIARY COMMITTEE UNANIMOUSLY PASSES "ROGUE WEBSITES" BILL

House Version Expected Soon

Nashville, TN -- The United States Senate Judiciary Committee this week unanimously passed legislation targeted at eliminating websites that primarily exist to allow the theft of music, movies and other intellectual property.
 
"The Nashville Songwriters Association International has been focusing on this issue for months and thanks the Senators who took a bold stand against the theft of American music on the Internet.  We expect similar legislation to be introduced in the U.S. House of Representatives very soon.  We continue trekking to Washington, D.C. and will soon launch and coordinate a national campaign for songwriters to communicate with their representatives on this issue."

"With only an estimated one of thirty songs legally purchased,
we MUST do something about the theft of music on the Internet."

    A more lengthy press release has been issued by Senator Patrick Leahy’s office and can be read here.

 

Copyright © 2011 C. Stephen Weaver

Illegal File Sharing - A P2P And TorrentFreak Rant!

Ok - I got my dander up this morning! I'm not sure what that means but the grandparents used to say it!  :)  I read a post and comments at TorrentFreak which defends illegal file sharing.

I am stunned that there are so many artist haters out there--I am referring to the comments to the TorentFreak post.  I'm not stunned that most haven't a clue as to what they are talking about.  This is why I can usually ignore the childish rants of the criminals who post in support of music and film theft.  A lot of the commenters are blaming the U.S. - what a joke.  Most don't even know that most of the major free countries of the world have been ahead of the U.S. in the protection of intellectual property and protecting the culture and art of their respective nations.  The U.S. had to change the term of protection to life plus 70 in order to be a part of the main copyright conventions of the world.  Congress doesn't have to encourage creation of arts and inventions by providing copyright and patent protection.  The constitution merely gives them the authority to do so. And so they do.

I will give them this one - the theives have put a lot of artists out of business so they can pat themselves on the back for that.  This is the human factor.  I know this because I talk to the artists and represent them.  I now see songwriters with track records of several number one hits who can no longer get a publisher to subsidize them through the tough times.  And my younger clients who hope to be able to follow their dreams never get the chance because the record labels sign so few compared to past years.  Remember - it takes over $1 million to launch a new artist in the country genre and certainly more in mainstream pop - and most of the time even that kind of exposure does not mean success.  The math is simple - less dollars at the labels = less artist signings.

These losses are not all caused by theft.  Some are caused by the legal use of technology - the ability to download single tracks rather than purchase albums.  This is legitimate -- a change in the marketplace which requires adaptation by those whose primary purpose is to disseminate the product.

There has always been and will always be crime.  It is just the nature of some members of humanity.  That's why we have laws and law enforcement.  Rest assured that the elected leaders of our country will not take actions which will destroy our culture and artistic community.  And the business structure around music and film will make adjustments and adapt to the world that we live in today . . . . and tomorrow.

Today's good news:  According to research conducted by the NPD Group, P2P filesharing is on the decline.  Check out the story at Music Row.

 

Copyright © 2011 C. Stephen Weaver

Obama Administration Supports Creators and Content Owners

    Last year the Obama administration sent a White Paper to Congress which, among other things, suggested that legislation be enacted to emphasize that illegal file sharing is a felony in certain circumstances.  Apparently the intention is to either create new legislation or somehow encourage enforcement of the criminal provisions of the existing Copyright Act.  Rarely is there criminal prosecution under the copyright act.  Normally only in cases of mass organized piracy and bootlegging.  Moses Avalon makes the comment in his latest blog that “it seems like the Fed is ready to level the playing field between America’s newest major industry—Internet technology--and one of its oldest—intellectual property, as Obama sets to put an end to piracy and torrent “streaming” of music.”

    Moses doesn’t mention that in the same White Paper the Obama Administration also endorses the Performance Rights Act which would provide a right of public performance for Sound Recording copyrights.  This is the right (non-existent in the U.S.) which would require that radio stations and others pay a royalty to the creators and owners of sound recordings in addition to their current payments to the creators of musical compositions.  Whether or not this recommendation to Congress will have any effect we do not know – but as Kevin Goldberg states in his law firm's blog, “as endorsements go, this is a pretty big one.”

    Any thoughts about this dear readers?

 

 © C. Stephen Weaver 2011

 

Google Now Pro Copyright?

            On Thursday (December 2, 2010) Google, historically slow to assist in the war against copyright piracy and infringement, announced steps that it would be taking to increase its role as a defender of the rights of content owners.  In the past Google has taken the position with the RIAA, MPAA and others that it is not Google’s job to aggressively monitor and “take down” copyright infringing activities associated with Google’s sites.

             Among new anti-piracy and anti-infringement actions announced by Google are (1) a promise to “act on reliable copyright takedown requests within 24 hours” and (2) to start removing sites linked to piracy from Google’s Ad Sense program.

             Cnet News speculates that the change in position by Google is prompted by their inability to negotiate successfully with content providers for Google TV and to benefit negotiations with the major record labels for Google’s proposed music site which will compete with iTunes.  Oh you mean the change doesn’t have something to do with enforcing laws on the books or protecting the owners and creators of copyrighted works?!  It’s all about the money – but we knew that from the beginning, didn’t we? 

    As long as they can get away with it or do not fear the consequences, pirates will steal and will create profitable ways to facilitate theft by illegal file sharers.  The tech world will support weakening laws that cause them to have to pay for content.  And at the end of the day, it is also about the money for the kids and others who illegally download music and films.  Otherwise, why not just pay for it?

             My sources for this Post are as follows:  Cnet News, “Has Google Jumped Sides The Copyright War?”; ZeroPaid, “Google to Speed Up Removal of Infringing Content”; and Music Ally, “Google Takes Action Against Online Copyright Infringement”.

 

Copyright © 2010 C. Stephen Weaver

Moses Avalon vs. Sean Parker

    In Friday's blog by outspoken Moses Avalon, he suggests Napster founder Sean Parker is a the "New High-Tech Hitler."  Parker, who also served as president of Facebook, is played by Justin Timberlake in the box office hit, “The Social Network”. Not stopping with the Hitler reference, Avalon attacks Parker's morality and upbringing.  He refers to him as a thief, a villain and a narcissist.  Dang Moses.  Speak up and say what you think!  You really might want to read this if you are looking for a smile today--tinged with a bit of anger at the guy who so blatantly has tried to bring down the livelihood of musicians and songwriters:  “Parker: New High-Tech Hitler?”

 

 

 Copyright © 2010 C. Stephen Weave

Limewire Shut Down by Permanent Injunction

     One of the world's largest P2P file sharing sites has been shut down by a Federal District Court sitting in New York City.  This ends a 4-year long court battle between the site and its owner, Mark Gorton.  The RIAA is naturally pleased with the decision:  “For the better part of the last decade, LimeWire and Gorton have violated the law. The court has now signed an injunction that will start to unwind the massive piracy machine that LimeWire and Gorton used to enrich themselves immensely.”  I first read about this momentous victory for the music industry in Billboard yesterday.

 

Copyright © 2010 C. Stephen Weave