3 Count: Piling On

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1: Record Labels Sue Sirius XM Over the Use of Older Music

First off today, Ben Sisario at The New York Times reports that the three major record labels as well as ABKCO, an independent group of labels, have filed a lawsuit against SirusXM alleging that the service does not have permission to use sound recordings made before 1972.

This is actually the third lawsuit on this topic filed against SirusXM. The first was filed by the band The Turtles and the second was by the royalty agency SoundExchange. Both suits seek as much as $100 million in damages.

Before February 15, 1972, sound recordings were not covered under Federal copyright law and, instead, are still protected under state and common law. This means, theoretically, they are not included in Federal rules that grant statutory licenses to play and stream Federally-protected sound recordings for a set royalty rate. The lawsuits could impact other music streaming services, such as Pandora, as well as public venues such as clubs and stadiums.

2: How the MPAA Came Out Ahead in a Birthing-Method Bloggers War

Next up today, Eriq Gardner at The Hollywood Reporter Esquire reports that the Motion Picture Association of America (MPAA) has come out ahead over the Electronic Frontier Foundation (EFF) in a proxy battle over allegedly false Digital Millennium Copyright Act (DMCA) takedown notices.

The dispute began whhen Dr. Amy Tuteur, a physician opposed to home birthing, and Gina Crosley-Corcoran, a proponent of home birthing, got into an online war. It reached a climax when Crosley-Corcoran posted a photo of herself making an obscene gesture at the camera and Tuteur responding by posting the photo on her site in a piece critical of Crosley-Corcoran. Crosley-Corcoran then filed a takedown notice to get the photo removed, resulting in all of Tuteur’s site being shuttered for a time. Tuteur then filed a lawsuit against Crosley-Corcoran, alleging the had filed a false DMCA takedown notice.

The case resulted in both the MPAA and the EFF filing amicus briefs, the MPAA supporting Crosley-Corcoran’s position that she did not need to analyze fair use before filing the notice and the EFF supporting Tuteur. However, it was the MPAA’s argument that won the day, with the judge ruling there is no indication that Congress intended fair use to be a factor to be weighed before filing a notice, just that the filer must have a “good faith belief” the notice is valid.

The case runs counter to an earlier victory for the EFF, which found that a takedown of a 29-second video of a baby dancing was not valid. However, that case is still on appeal.

3: CBS Says FilmOn Using “Diversionary Tactics” In Latest Court Loss

Finally today, Dominic Patten at Deadline Hollywood writes that the war between CBS and billionaire Alki David has heated up once again, this time resulting in a contempt of court ruling against David and his company FilmOn.

Though FilmOn is currently battling CBS and other broadcasters in its current incarnation, as an Aereo-like streaming TV service (using multiple antennas to ensure each customer has their own receiver), this ruling involves a previous judgment against FilmOn over its former version, which streamed TV more directly. In that, FilmOn was the subject of an injunction and settled the case, agreeing to pay $1.6 million.

However, so far David has refused to pay the full amount, instead only paying $250,000 and has also refused to remove all of the content he was required to. However, FilmOn had claimed that they had purchased the rights to display CBS’ content from a third party but, when pressed for that agreement, were unable to produce one. The judge filed a contempt order and has demanded that David pay the full $1.35 million owed (plus interest and expenses) and remove content belonging to and sites critical of CBS he is currently hosting.


That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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