[Plaintiff] claims that Kelly agreed to hit the stage on December 6, 2007
at the Target Center alongside Keyshia Cole and Ne-Yo. Allegedly, Kelly
failed to show but still took a $120,000 fee for it.
February 1, 2008
"Your Honor, I was Trapped in the Closet"
R. Kelley is being sued by a Nevada-based promoter for allegedly failing to appear at a scheduled performance.
Observations on a Eulogy for the CD, by the WSJ
Is the CD dead? The Wall Street Journal weighs in: "Determining what killed the CD is kind of playing "Clue" in reverse -- what didn't contribute to its demise?"
Who doesn't like playing Clue, or at least talking about it?
[Jason Fry, "Beyond the Album", Wall Street Journal (Jan. 27, 2008)]
Who doesn't like playing Clue, or at least talking about it?
[Jason Fry, "Beyond the Album", Wall Street Journal (Jan. 27, 2008)]
January 31, 2008
What The Game's Been Missing
LaRon James (not to be confused with LeBron James ), the performer better known as Def Jam recording artist "Juelz Santana", is being sued in New York Supreme Court in a contract action for failure to pay on a judgment. The plaintiff seeks $1.3 million.
Trivia for NY-admitted attorneys: what provision of the CPLR would such suit be brought under?
[FHE Record Group Inc. v. Juelz Santana aka Leron James; Santana's World Inc.; filed, 1/30/2008; case no. 08-600279]
Trivia for NY-admitted attorneys: what provision of the CPLR would such suit be brought under?
[FHE Record Group Inc. v. Juelz Santana aka Leron James; Santana's World Inc.; filed, 1/30/2008; case no. 08-600279]
I Went to College - And Got Sued by the RIAA!
Another day at the races for the major labels, who yesterday (1/30) filed no less than 7 copyright infringement cases against "John Doe" defendants in various federal district courts.
Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):
"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."
Continuing,
"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."
Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.
But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.
"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."
A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue University...so IU students, look out!
Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)
Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).
I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?
Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):
"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."
Continuing,
"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."
Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.
But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.
"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."
A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue University...so IU students, look out!
Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)
Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).
I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?
January 30, 2008
U2 Manager - Achtung Baby!
Rolling Stone reports that U2 manager Paul McGuinness "called for an end to illegal music downloading and placed much of the blame squarely at the feet of Internet service providers. He also called out record labels for their lack of foresight and governments for not holding ISPs responsible for what pumps through their wires."
Understandably, McGuiness wants to secure the financial future of the band. And yes, U2 should not only strive to be great at music, but also great at business too.
But, being great at business is not analogous to clinging to the old model of the music business. Adapt. Otherwise, you still haven't found what you're looking for.
Understandably, McGuiness wants to secure the financial future of the band. And yes, U2 should not only strive to be great at music, but also great at business too.
But, being great at business is not analogous to clinging to the old model of the music business. Adapt. Otherwise, you still haven't found what you're looking for.
Let My People Go
Can you imagine a music group being BANNED by a nation, out of fear that they would corrupt young fans? A tipster sent this link, reporting that Israel has lifted its ban on the most corrupt band in music history: The Beatles?!
...of course, similar debates continue today. Is graphic violence and sexual content in video games contributing to "the corruption of youths"? The music industry is not immune from such manic fear; anyone purchasing an album with a "Tipper Sticker" (i.e., parental advisory label) should know that this nation, the bastion of free speech, has had its own scares of censorship.
...of course, similar debates continue today. Is graphic violence and sexual content in video games contributing to "the corruption of youths"? The music industry is not immune from such manic fear; anyone purchasing an album with a "Tipper Sticker" (i.e., parental advisory label) should know that this nation, the bastion of free speech, has had its own scares of censorship.
January 29, 2008
What I Like About You
The Patry Copyright blog posted an interesting decision in the "Guitar Hero" case pending in the Eastern District of Michigan. You can read the decision here.
Of interest are the right to publicity claims, and both the standing and preemption issues.
[The Romantics v. Activision Publishing, Inc., 2008 WL 186370 (E.D. Mich. Jan. 22, 2008)]
Of interest are the right to publicity claims, and both the standing and preemption issues.
[The Romantics v. Activision Publishing, Inc., 2008 WL 186370 (E.D. Mich. Jan. 22, 2008)]
Puerto Rico Moral Rights Update
This morning, OTCS commented on a copyright infringement case in the Federal District Court, District of Puerto Rico, which included a claim for infringement of the plaintiff's moral rights.
This claim appears to be based on Title 31 of the Laws of Puerto Rico, section 1401 et seq. Section 1401 states: "The author or beneficiary of a literary, scientific, artistic and/or musical work has the right to benefit from it, and the exclusive prerogatives to attribute to him/herself or retract its authorship, dispose of his/her work, authorize its publication and protect its integrity, in accordance with the special laws in effect on the matter".
Title 31 continues...the moral right has a 50 year duration (1401c); and, does not attach to works created for advertising entities or for promoting goods or services, unless otherwise agreed (1401e). The moral right includes a right to resale royalties, totalling 5% deducted from the seller's earnings (1401h). Remedies for infringement include temporary or permanent injunction, restitution, seizure, or destruction of the infringing works (1401f).
Notably, Puerto Rico provides a moral right specifically for musical works (1401i), which requires the complete name of the composer of a musical work and corresponding song shall be specified and mentioned, in addition to the complete name of the artist or performer, on the production, recording, show or musical event at issue. This section should come into play in the Pascual suit filed yesterday.
This claim appears to be based on Title 31 of the Laws of Puerto Rico, section 1401 et seq. Section 1401 states: "The author or beneficiary of a literary, scientific, artistic and/or musical work has the right to benefit from it, and the exclusive prerogatives to attribute to him/herself or retract its authorship, dispose of his/her work, authorize its publication and protect its integrity, in accordance with the special laws in effect on the matter".
Title 31 continues...the moral right has a 50 year duration (1401c); and, does not attach to works created for advertising entities or for promoting goods or services, unless otherwise agreed (1401e). The moral right includes a right to resale royalties, totalling 5% deducted from the seller's earnings (1401h). Remedies for infringement include temporary or permanent injunction, restitution, seizure, or destruction of the infringing works (1401f).
Notably, Puerto Rico provides a moral right specifically for musical works (1401i), which requires the complete name of the composer of a musical work and corresponding song shall be specified and mentioned, in addition to the complete name of the artist or performer, on the production, recording, show or musical event at issue. This section should come into play in the Pascual suit filed yesterday.
American Gladiat...Idol!
Ruben Studdard, winner of the second season of American Idol, filed suit yesterday in the Supreme Court of New York against Peachez Inc., who according to their website are a "specialty marketing company that offers strategic concepts in the entertainment industry" (huh?), and related parties. (Defendant's appear to be live-performance promoters.) Unfortunately, details are limited at this point, as the suit was initiated with the mere filing of a summons with notice for breach of contract. (See New York CPLR 304, "An action is commenced by filing a summons and complaint or summons with notice.") Alleged damages: $45,000. Counsel for plaintiff is Pryor Cashman.
[Ruben Studdard v. OIG Inc.; Peachez Inc.; Melvin Childs III individually; filed 1/28/2008; case no. 08-101697].
[Ruben Studdard v. OIG Inc.; Peachez Inc.; Melvin Childs III individually; filed 1/28/2008; case no. 08-101697].
Moral Rights in Puerto Rico?
In a case filed in the District of Puerto Rico for copyright infringement arising out of defendant record-label's alleged willful breach of royalty agreement, the artist/"MC" plaintiff included a claim for "moral damages under Puerto Rico's copyright act."
There are two main claims under this count of the complaint: first that the version of a song unlawfully published and distributed by defendant "severely altered" the artist's "voice and delivery". Second, "as the song's author, [plaintiff] has the moral right to protect the integrity of the same". Damages under the claim are alleged to be $100,000.
Traditionally, moral right claims are an claim in international copyright cases - not in the U.S.! Is Puerto Rico the only U.S. territory to have a moral rights law?
Interestingly, plaintiff also makes a claim for attorney's fees under 17 U.S.C. 505 (an actual count! Not just in there prayer for relief!).
Lastly, plaintiff raises an issue over a song re-recorded by defendant. Though a publishing claim by the author is feasible, the complaint appears to mix its analysis of basic copyright law: the distinction between sound recordings and musical compositions. ("Upon hearing the song...re-record the same in Record Inc's studio.")
*Note: the complaint is labeled "Plaintiff Requests Trial By Jury".
[Pascual v. Pina Records, Inc.; case no. 3:08-cv-01114-GAG; filed 1/28/08; D. Puerto Rico]
There are two main claims under this count of the complaint: first that the version of a song unlawfully published and distributed by defendant "severely altered" the artist's "voice and delivery". Second, "as the song's author, [plaintiff] has the moral right to protect the integrity of the same". Damages under the claim are alleged to be $100,000.
Traditionally, moral right claims are an claim in international copyright cases - not in the U.S.! Is Puerto Rico the only U.S. territory to have a moral rights law?
Interestingly, plaintiff also makes a claim for attorney's fees under 17 U.S.C. 505 (an actual count! Not just in there prayer for relief!).
Lastly, plaintiff raises an issue over a song re-recorded by defendant. Though a publishing claim by the author is feasible, the complaint appears to mix its analysis of basic copyright law: the distinction between sound recordings and musical compositions. ("Upon hearing the song...re-record the same in Record Inc's studio.")
*Note: the complaint is labeled "Plaintiff Requests Trial By Jury".
[Pascual v. Pina Records, Inc.; case no. 3:08-cv-01114-GAG; filed 1/28/08; D. Puerto Rico]
January 28, 2008
Another Cookie Cutter Complaint
Another cookie-cutter copyright infringement suits filed against P2P users...It is virtually identical to those filed last week in various district courts around the nation.
Sample .pdfs coming soon!
[Warner Bros. Records v. Council, case num 3:08-cv-00127-PCD; filed 1/24/08; D.Conn]
Sample .pdfs coming soon!
[Warner Bros. Records v. Council, case num 3:08-cv-00127-PCD; filed 1/24/08; D.Conn]
QTrax - What's Up With This?
In the early morning hour, our friends from blog Down By The Hipster sent OTCS this link, asking "whats up with this?"
Why, it's QTRAX, who on their website boast "free and legal music downloads". But, all is not as it seems over at this "authorized" P2P network. Rolling Stone reports that supposed deals between QTrax and the major labels has been "greatly exaggerated."
Nonetheless, QTrax represents the music industry's recognition that ad-supported, free, on-demand downloads are the next wave. The problem, though, is monetization. A distribution model like QTrax is similar to traditional radio: user's get their music for free in exchange for listening to advertisements. But unlike radio, a service like QTrax is on-demand and permanent. The incentive of having your song on the radio -- creating buzz and/or demand for listeners to purchasers to PURCHASE their own copy for later on-demand and permanent enjoyment -- is simply not present.
Perhaps that is why the labels pulled out?
Why, it's QTRAX, who on their website boast "free and legal music downloads". But, all is not as it seems over at this "authorized" P2P network. Rolling Stone reports that supposed deals between QTrax and the major labels has been "greatly exaggerated."
Nonetheless, QTrax represents the music industry's recognition that ad-supported, free, on-demand downloads are the next wave. The problem, though, is monetization. A distribution model like QTrax is similar to traditional radio: user's get their music for free in exchange for listening to advertisements. But unlike radio, a service like QTrax is on-demand and permanent. The incentive of having your song on the radio -- creating buzz and/or demand for listeners to purchasers to PURCHASE their own copy for later on-demand and permanent enjoyment -- is simply not present.
Perhaps that is why the labels pulled out?
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