Anthony Lin, "Criticizing Firm, Judge Denies Fees in Hip-Hop Bankruptcy", 4/15/08 N.Y.L.J. at p. 1. ("A Bankruptcy judge has slammed a New York law firm for putting its own desire to be paid above the interests of its client [Source Enterprises Inc.] in a Chapter 11 proceeding.").
In re Source Enterprises Inc., No. 06-11707, 4/17/08 N.Y.L.J. "Decision of Interest" (Bkrcy. S.D.N.Y. Mar. 27, 2008).
April 17, 2008
April 16, 2008
Public performance in S R?
Copyright Office supports public performance rights in sound recording. What would this mean for broadcasters who are currently exempt?
New congressional bills introduced on Dec 18 2007. Key provisions proposed:
Expand 114 to broadcasting. Reach all transmissions in all formats. Possible carve out for small broadcasters with a $5000 cap annual fee. Similar for non commercial broadcasters with $ 1000 annual fee cap.
Exempt religious use and background use.
Explicitly say no effect on publishers rights.
Why are these important? Parity for platforms and among copyright owners.
Why oppose? Promotional value of broadcasting. But that weakened by internet broadcasts. FCC? Public interest obligations.
Section 115
General Counsel from Copyright Office.
Amend it? " Most important musical issue for digital music distribution".
Another look at it. Look at business models of digital music distribution. Limited download v interactive streams. All implicate copies. Is that delivery as defined in scope of license? Server copies. Steaming copies.
Important because royalty judges are hearing on new rates. Novel question of law is whether interactive streaming a digital phono record delivery? No. on demand digital transmission : should they be eligible for royalty rate?
Everything depends on definition of digital phono record delivery.
Notice of proposed rule making forthcoming.
Pre 72 protection?
At the Copyright Office Comes to New York. Mary Beth Peters notes some voices in copyright office advocate for federal term to pre 72 sound recordings preempting current 50 state laws currently controlling.
[Note: Today's posts are "mobile", as OTCS reported live from 'The Copyright Office Comes to New York'.]
[Note: Today's posts are "mobile", as OTCS reported live from 'The Copyright Office Comes to New York'.]
April 15, 2008
Nail and Mail - The Bronx
Warner Bros. Records Inc. v. Berry, No. 07 Civ. 1092-HB, 4/15/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Apr. 9, 2008).
The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.
Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.
However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."
Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"
However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."
The court adopted Magistrate Judge's recommendation to deny Plaintiff's default judgment application and dismissed the case.
Plaintiff's alleged that Defendant used KaZaA to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of the Copyright Act. Over a year before filing the complaint, Plaintiffs served AOL (an ISP), which identified Defendant as the person responsible for the IP address that was using KaZaA. AOL provided Plaintiff's with an address for Defendant in the Bronx, NY. Plaintiffs then hired a process server, whose attempts at service were "unsuccessful"; thereafter, the process server affixed one copy on the property in the Bronx. and depositing a copy of the summons in a first class post paid envelope addressed to the same address.
However, the Court found that service on Defendant was defective and therefore dismissed the complaint. "Here, service was defective under the 'nail and mail' method [CPLR 308(4)] because Plaintiffs' process server both affixed and mailed the summons to Defendant's last known residence."
Though the mailing component of service by "affixing and mailing" may be to the defendant's last known residence, "the 'affixing' component must be to the door of the defendant's actual place of business, dwelling place or usual place of abode, and not to the defendant's last known residence. To blur the distinction between 'last known residence' and 'dwelling place' 'would diminish the likelihood that actual notice will be received by potential defendants.'"
However, the Court did not adopt the Magistrate Judge's recommendation that Plaintiffs be ordered to show cause they they did not violate FRCP 11(b). The Court found that "while Plaintiffs' lawyers should be faulted for failing to keep closer tabs on their process server and for failing to better supervise their paralegal, their actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers might have been sloppy in their attempts to serve Defendant, but giving them as officers of the Court the benefit of the doubt, all their representations to this Court were...nor for the improper purpose of unnecessary delay."
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