Reasonable Balance: Copyright Law

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Reasonable Balance

Intellectual property issues as they relate to art and music, legal news of all kinds, and takes on popular music.
By Nancy Prager, Esq.

Post Frequency: 1/day

Last Entry: June 19, 2009 at 18:43:04

Second time not the charm for Jammie Thomas, nor the RIAA

Posted on June 19, 2009
“Illegal, but common” were the words in the judge’s decision to grant a new trial in Capitol Records v. Thomas that made me end my run as a blogger. As a copyright attorney who works with a range of clients to protect their assets, reading a federal judge’s opinion that downloading music might be illegal [...

Difference between Amateurs & Professionals? Fact Checking

Posted on October 03, 2008
In the past year it has become the rage for traditional publishers to provide a platform for amateurs to report the news. CNN offers iReport. The problem is that unlike for news that journalists report, CNN does not fact check anything its users report...

The more things change? the more they stay the same? the mechanical royalty remains a matter of cents

Posted on October 02, 2008
The Copyright Royalty Board, an administrative law court charged with setting license rates for compulsory licenses under the Copyright Act, issued its ruling in the first contested rate setting proceeding for the “mechanical royalty” this afternoon...

Illegal but Common?. Defense lawyers everywhere rejoice

Posted on September 24, 2008
Words fail me. The judge has ordered a new trial based on faulty jury instructions in Capitol v. Thomas, a case about which I wrote in the Recording Industry Shows How to Lose by Winning for news.com just a year ago. Words fail me not because a new hearing has been ordered, or because I fundamentally disagree [...

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The Politics of Music: Droit Moral, if only?

Posted on September 18, 2008
John McCain’s campaign can’t catch a break when it comes to music. Jackson Browne is suing the campaign for copyright infringement over the use of his song “Running on Empty” in a video prepared by a state party. John Mellencamp sent a cease and desist letter over the use of the songs “Our Country” and [...

Conjuring a Ghost: Copyright and Rowling prevail in the Harry Potter Encyclopedia Case

Posted on September 11, 2008
Fair use, like obscenity, is something that judges in America seem to know when they see it. With the rise of the Internet, fair use seems to be becoming a more popular defense, and even an offense, in copyright infringement cases. What qualifies for fair use in one case, may likely not qualify in another [...

Creative Commons, contracts and copyright?

Posted on September 05, 2008
How many of you use a Creative Commons branded document to license your songs, text, art or photograph? <Nancy scans the crowd, sees many hands go up.> How many of you read anything other than this handy pictograph chart Creative Commons provides? <Scanning the crowd, only a few hands remain in the air...

Stop the Presses: Io Groups v. Veoh might not be a home run for YouTube

Posted on August 29, 2008
A purveyor of pornography, Io Groups, filed a copyright infringement action against Veoh Networks over the performance of clips from ten (10) of its movies on veoh.com. Similar to YouTube in many ways, users may upload content to veoh.com. Unlike YouTube, the site did not initially prohibit adult entertainment...

A supplement to the New York Times article on YouTube and its VideoID initiative

Posted on August 17, 2008
In “Some Media Companies Choose to Profit from Pirated YouTube Clips” the New York Times reports that content companies from Universal Music to Lionsgate Film have opted to participate in a program that allows user uploaded content to remain on YouTube with advertising revenue diverted to the owners of the content...

You Asked, I?ll Tell: Does YouTube pay ASCAP a license fee?

Posted on August 13, 2008
A Reasonable Balance reader recently asked whether or not YouTube pays ASCAP for a license to perform music on its site. No, YouTube is not currently paying ASCAP, BMI or SESAC for the performance of music on its site. When last I checked, the performing rights organizations were each still trying to negotiate [...

Isaac Hayes? a great Memphis Soul

Posted on August 11, 2008
An amazing voice, writer and spirit was lost last night when Isaac Hayes passed away. Not only did he write amazing songs, from the theme of Shaft to Soul Man, he was dedicated to educating and mentoring younger musicians who followed in his footsteps...

Cablevision: a limited victory for the storage of content in the clouds?.

Posted on August 06, 2008
The 2nd Circuit Court of Appeals earlier this week, in Cartoon Network v. Cablevision, held that the “Remote Storage Digital Video Recorder” (RS-DVR) service Cablevision offered did not infringe on the plaintiff content owner’s copyrights...

Google Book Search: Let There Be Light, free the public domain

Posted on August 05, 2008
I am constantly researching, either for client related projects or for my writing projects, including this blog. As a researcher I love being able to access most information I need on the Internet through public resources or proprietary databases. For the past few weeks I have been spending a great deal of time [...

On the occassion of William Patry?s retirement from the blogosphere

Posted on August 03, 2008
William Patry has retired his incredibly useful blog about copyright. Unfortunately, not only has he retired the blog he has removed all of its posts. His final post provides that the reason for the retirement is two fold. First, Mr. Patry is senior copyright counsel for Google...

Who knew? Not 14, but 5 years is the ideal copyright term.

Posted on July 24, 2008
In a move that one ups Larry Lessig’s call for a 14 year copyright term, Andrew Dubber, a professor in England, has announced to the world that the ideal copyright term for creative content is 5 years. Like Lessig, Dubber’s 5 year term would be renewable if the copyright creator has used the works [...

YouTube on TiVo: The future of broadcasting?

Posted on July 21, 2008
In the ongoing litigation between Viacom and YouTube, one of the significant factors that the court may have to consider is whether or not YouTube knew or should have known about the infringement occurring on its site. Well before the litigation, executives and agents of the company acknowledged that they were aware that the [...

Off Topic: Unfortunate Trademark Infringement

Posted on July 16, 2008
The media reported that the Columbian military had rescued FARC held hostages under the guise of being humanitarian volunteers. At the time I thought that was probably an unfortunate ruse for the dozens of hostages that FARC is still holding in the jungle...

Europe here we come! Music streams across borders?

Posted on July 16, 2008
Companies around the world that want to offer legal music services online have to jump through a series of hoops to obtain the rights required to broadcast music. In the United States, companies negotiate a rate with three different performing rights organizations for the right to perform the underlying compositions, and rely on [...

Quick & Dirty Post: Viacom agrees to let YouTube strip? data

Posted on July 15, 2008
Viacom and the other plaintiffs in the proceeding against YouTube for copyright infringement have agreed that YouTube may transfer the data discussed previously without the IP Addresses or other potentially personally identifiable information. So does that mean that IP Addresses alone are personally identifiable? If so, that contradicts testimony from a Google technologist who claimed [...

Quick & Dirty Post: Weeds, making it easy to get? music

Posted on July 11, 2008
One day you will be able to point your remote at your television, or click on your computer screen, to buy the song accompanying a scene. Heck, you might even be able to point your MP3 device at a movie screen, billboard or other potentially wireless emanating device and download the song...

Quick & Dirty Post: Weeds, making it easy to buy? music

The many layers of the discovery order in Viacom v. YouTube

Posted on July 08, 2008
There was a time twelve terabytes of data would require multiple mainframes to store and process it. Now, as the judge in the ongoing Viacom v. YouTube litigation has noted, there are affordable and fairly portable four terabyte hard drives available...

Oh, Mamma Mia, Sex and the City: a little bit about derivative works

Posted on July 02, 2008
The right to make a derivative work is one of the most valuable of the exclusive rights granted to the owner of a copyright. In the United States, reformulating preexisting copyright protected works for a new purpose, like a movie version of a book, creates a derivative work of the original work...

Some practical advice for rock stars in the Digital Age

Posted on June 16, 2008
Last week I co-sponsored the “Distributing and Marketing your Music on the Internet” panel at Artomatic with the Future of Music Coalition and the Washington Area Lawyers for the Arts. In lieu of a policy or legal discussion, the panelists offered practical advice to musicians and others interested in marketing and distributing music online...

Copyright is important, but other things much more so?

Posted on June 10, 2008
After an investigation during which millions of indecent and illegal pictures of children were viewed over the Internet, Andrew Cuomo, the Attorney General of the State of New York, has announced that three of the major Internet Service Providers (ISPs) have agreed to block access to child pornography...

Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences (Part Two)

Posted on May 27, 2008
As discussed in The Fundamentals of Copyright and the Problem with Lost Owners (Part One) the exclusive rights of copyright attach automatically to a work, whether a photograph or a poem, once it has been transposed into tangible form. However, for works created before 1978, authors and artists had to take affirmative steps to [...

Artful Law at Artomatic? tonight at 6:30 p.m.

Posted on May 22, 2008
Yes, tonight, May 22, at 6:30 p.m. I am moderating and participating on the Artful Law panel at Artomatic. I have been remiss in posting it on my own blog. Oops. Artomatic 2008 1200 1st St. NE Washington DC New York Ave. Metro (red line) Topics will include everything from choice of entity, tax issues and licensing...

Fundamentals of copyright, lost owners and audience participation

Posted on May 20, 2008
Many people find the comparison of real property to intellectual property disconcerting or inappropriate. The arguments I have heard include “one is tangible, the other is intangible” or ” a finite number of people can use one, while millions of people can use the other...

Music 2.0?> what are your ideas?

Posted on May 15, 2008
The wonderful and informative blog Hypebot is holding an online roundtable to address how the business of being a musician is going to change as a result of the disruptive technologies that the Digital Age has introduced. Bruce Houghton has posted his Top 10 Issues Facing Music 2...

Off Topic: Hezbollah and Lebanon go to war? over the telephone

Posted on May 11, 2008
Last week, the Lebanese cabinet debated eleven hours to decide what to do about the private telecommunications network Hezbollah has installed along the borders with Israel. Declaring it illegal and a threat to security, they ordered Hezbollah to remove the landline network...

No? Really. We might actually be held responsible?

Posted on May 09, 2008
Right about now, Valence Media and its co-defendants might wish that TorrentSpy was the name of a blockbuster movie they had produced instead of the peer to peer network that served as a means for the wholesale illegal distribution of the creative works of others...

What I should have said?

Posted on May 07, 2008
Have you ever felt like you missed an opportunity to say something? Of course you have, we all have. Recently, I missed the opportunity to participate in an essay contest for the Yale Journal of Law and Technology in which participants were asked to advise the next administration on technology and intellectual property policy...

Uh oh, here we go again?

Posted on May 01, 2008
In what may be a historic decision, Judge William Conner of the Southern District Court of New York (”SDNY) has set a rate for the blanket licenses of the songs in the American Society of Composers and Publishers (”ASCAP”) catalog to AOL, Yahoo, and RealNetworks (operator of Rhapsody and other music services)...

Ingrid Michaelson: Building an (independent) career one (great) song at a time

Posted on April 15, 2008
Ingrid Michaelson is a very talented singer/songwriter as is evident on her two indie releases, Girls & Boys and Slow the Rain. Like other artists she set up a MySpace account to share her music and build an audience. One day in the fall of 2006, Lynn Grossman, a music supervisor/artist [...

Network Neutrality, a reasonable approach

Posted on April 14, 2008
Generally I have been fairly ambivalent about Network Neutrality. The response to my blog post about Damian Kulash’s editorial in the New York Times has caused me to reconsider the issue. Friends and colleagues reached out to explain why I should support the concept of Network Neutrality: arguments were made, economic analysis provided [...

Off Topic: Nobody thought they would get this far

Posted on April 08, 2008
As I sat in the bar watching the end of the 2008 NCAA Championship Game, my mind wandered back to the days I used to watch the Tigers play at the Mid-South Coliseum and Pyramid. I was never one to sit in the seat for the whole game, I would walk around to visit [...

OK Go, Net Neutrality and the reality of being paid for the use of music on the Internet

Posted on April 06, 2008
You probably remember seeing the video of four guys singing and dancing while keeping perfect time to a catchy song. At least one person must have sent you a link to the video on YouTube. Well the band was OK Go, and the song “Here it Goes Again...

Music, music everywhere? this time labels will be paid (and hopefully others too)

Posted on April 02, 2008
Okay, it is April 1 but this is not a joke, though I fear we may be fools… TDC, a Danish telecommunication provider has launched an unlimited music download service for their customers. 30 record labels, including three of the majors, have licensed music to TDC...

It has been a year? and what a year it has been.

Posted on March 30, 2008
This week marked the one year anniversary since I launched Reasonable Balance after an eventful weekend shopping for an MP3 player. In the interest of full disclosure, many months after writing my first post, I bought a pink Zune; which I love (and not just because of the color)! It is the age of [...

Quick & Dirty Post: Nah Nah Nah Nah Nah Goodbye Torrentspy

Posted on March 27, 2008
As of today TorrentSpy has shut down the url www.torrentspy.com. According to the notice they have posted, they shut down because “[t]he legal climate in the USA for copyright, privacy of search requests, and links to torrent files in search results is simply too hostile...

Billy Bragg rocks and royalties

Posted on March 23, 2008
Peter Jenner, rabble rouser extraordinaire, and I had a meeting a few years ago at SXSW where we discussed many things related to copyright, music and the Digital Age. One of the main points during the conversation was that sites like MySpace had provisions in its terms and conditions that claimed a license in the [...

Off Topic: The importance of estate planning

Posted on March 10, 2008
Very rarely does a media story about a celebrity impart an important life lesson. Generally, most of us will not find ourselves in the same position as the celebrities the tabloids cover. The tragic death of Heath Ledger is, unfortunately, something that could happen to any of us...

Wednesday, March 12, a great day of learning at SXSW (if I may say so)

Posted on March 07, 2008
On Wednesday, March 12, I am presenting the Red Flags in Contracts panel at SXSW for musicians, and other interested parties. My co-panelists, John P. Strohm and David Prasse, and I will highlight terms, provisions and issues which should raise concern for artists when they review contracts...

On Trent Reznor, Jill Sobule and the days of wine and roses

Posted on March 06, 2008
Earlier today my friend Edward sent me an article from arstechnica about Trent Reznor’s recent decision to release a digital album for free with an accompanying box set of the album with additional materials and the like for $300. According to reports, all 2,500 editions of the box set that were available for sale [...

Facebook on my Blackberry; it?s like waking up with an unwanted guest in bed

Posted on March 05, 2008
I recently had to reinstate my BlackBerry after it had gone missing for a few days. To my dismay and disappointment I discovered an unwanted application upon reactivation: Facebook. According to TMobile, “Facebook(r) is a social utility that connects you with the people around you...

Bob Lefestz please put down your pen and step away from the debate

Posted on January 30, 2008
For the past few years when I have read the Lefsetz Letter I have often pondered Mr. Lefsetz‘ positions on issues. I generally have viewed him as the Ann Coulter of the music industry. However, after reading Mr. Lefsetz’ letter on Paul McGuiness’ speech at MIDEM this morning I will need no [...

Quick & Dirty Post: I heart U2 (and Mr. Paul McGuinness too)

Posted on January 29, 2008
I have often watched Bono’s activities for the betterment of the world with mixed emotions. I am thrilled that he has taken an incredibly personal and active interest in the plight of the poor. Honestly as a fan from my pre-teen years, I am not surprised by his dedication to the cause...

A unified copyright regime for a unified Europe?

Posted on January 04, 2008
The European Commission has launched an initiative to create a common intellectual property standard for content on the Internet that will apply throughout the European Union. The “Creative Content Online in Europe’s Single Market” initiative seeks to resolve the challenges online services face when they offer services in Europe...

It?s a new dawn, a new day and a new year?

Posted on January 03, 2008
The soundtrack for the beginning of 2008 for me included a bit of Nina Simone, including her cover of Feeling Good. Lately, I have developed a bit of an obsession on Nina Simone in the past few months. In addition to being an amazing singer, she wrote powerful and elegant songs...

Off Topic: Innocent until proven guilty ? unless you play baseball?

Posted on December 14, 2007
Believe it or not by Monday I am going to post a comparison of the current steroid scandal in baseball to copyright but first… Yesterday, George Mitchell, a former senator, and his law firm DLA Piper released a report based on an investigation about the use of performance enhancing drugs in baseball...

Standing with the Writers

Posted on December 03, 2007
When I was a little girl, my Grandmother P would marvel at the manner in which I watched television. She told me that I was the only person who could read or be otherwise occupied during a television show because I listened to the show instead of watching it...

Off Topic: Symbolic solidarity with the Pakistani legal community

Posted on November 14, 2007
I attended the solidarity rally the American Bar Association organized to support the lawyers in Pakistan who have stood up to General Pervez Musharraf and his “martial law.” I arrived shortly before William Neukom, the President of the ABA, spoke, declaring that the lawyers of America stand with their Pakistani colleagues...

Music Interlude: Giant Bear in Paste Magazine

Posted on November 13, 2007
This month Paste Magazine has featured Giant Bear in its 4 to Watch feature. The band plays a unique fusion of folk, bluegrass and good ol’ rock & roll. Its eponymous album on Red Wax Music highlights the band’s range and captures it soul...

Off Topic: Lawyers to rally in solidarity with our colleagues in Pakistan

Posted on November 12, 2007
On Wednesday, November 14, lawyers will gather on Capitol Hill to show solidarity with our amazing colleagues in Pakistan who are leading the fight for democracy. The American Bar Association has organized the event which will include a silent march in front of the Supreme Court to pay respect for the role an independent [...

Radiohead In Perspective, by the numbers

Posted on November 06, 2007
Sixty percent of individuals who downloaded In Rainbows from Radiohead did so without paying according to a report from ComScore. According to the report, the average price for the music from those who chose to pay the band was less than $6 US. Of course, the report did not take into account the [...

Good Poets Borrow, Great Poets Steal?

Posted on May 08, 2007
A reporter for NPR?s Morning Edition, used my favorite misquote in her ?Stanford Center Advocates for Fair Use on the Web? piece that aired on May 7, 2007. Though the quote is usually attributed to T.S. Eliot, Ms. Sydell attributed a slightly altered version of ?Good poets borrow, great poets steal? to Picasso, this [...

A Primer on Music Performance Licenses (Musical Compositions)

Posted on April 25, 2007
Among the exclusive rights granted to the owners of most copyrights is the right of public performance. As discussed in the Primer on Music Performance Licenses (Sound Recording), the public performance right for a sound recording is only available for music transmitted digitally or by satellite...

A Primer on Music Performance Licenses (Sound Recording)

Posted on April 24, 2007
The United States of America holds a special place in the hearts of the children of France. Not only does America export fabulous music, we subsidize the music education in French schools through funds collected on the performance of the music that is not able to be distributed to American performers and copyright owners...