Bit Parts

The Court of Appeal of California, First Appellate District, Division Four, has decided, in an unpublished opinion, that a 1991 written partnership agreement among the members of the punk group the Dead Kennedys constituted a sufficient writing to meet the Copyright Act's requirement for assignment of exclusive rights in the group members' copyrights to the partnership. Dead Kennedys v. Biafra, A094272. Former group leader Jello Biafra argued that the written agreement wasn't contemporaneous with the band's original 1981 oral partnership agreement. The appeals court noted, however, that 'the 1991 agreement memorializing the transfer of licenses to Decay Music [ie, the band partnership] was negotiated between the parties, set forth the terms of the license and was executed during the life of the license. The agreement thus satisfied the copyrights law's written instrument requirement.' The court of appeal went on to uphold the band's claims against Biafra and his Alternative Tentacles Records over handling of the group's record sales.

Punitive Damages Available

A Manhattan federal court has decided that claims for punitive damages can be presented to juries in copyright cases in which there is willful infringement, and a statutory award is excluded or actual damages plus profits are sought. TVT Records v. The Island Def Jam Music Group, 02-6644.

Aimster Update

The U.S. Court of Appeals for the Seventh Circuit has upheld a preliminary injunction that shut down Aimster pending resolution of the music industry's litigation against the Internet file-sharing service. In Re: Aimster Copyright Litigation, 02-4125. The appeals court agreed 'that the ability of a service provider to prevent its customers from infringing is a factor to be considered in determining whether the provider is a contributory infringer,' but added it is 'not necessarily a controlling factor, however, as the recording industry believes.' The court rejected the industry's argument that contributory infringement can be established by anything 'more than a mere showing that a product may be used for infringing purposes.' The 7th Circuit thus disagreed with the 9th Circuit's ruling in A&M Records Inc. v. Napster Inc., 239 F.3d 1004, (2001), which suggested that actual knowledge of specific infringing activity is enough to establish contributory infringement. But the 7th Circuit rejected Aimster's argument that the music industry must show actual monetary loss from unauthorized Internet file-sharing. The appeals court also found that the tutorial Aimster provides that cites the sharing of copyrighted music as the only example of how the software may be used is an 'invitation to infringement.' The court further noted that the Aimster defendants failed to provide sufficient evidence that Aimster was actually used for non-infringing purposes.

More Web Infringement Rulings

Last month's refusal by the U.S. Court of Appeals for the District of Columbia to stay a lower court order requiring Verizon to reveal to the names of its customers who illegally download music, has received widespread attention. Recording Industry Association of America Inc. v. Verizon Internet Services Inc., 03-7015. Less known is a recent ruling by the U.S. District Court for the District of Hawaii that under the Digital Millennium Copyright Act, a copyright owner does not have to conduct an investigation to demonstrate actual infringement before sending an Internet Service Provider a notice demanding that an allegedly infringing website be shut down. Rossi v. Motion Picture Association of America, 0200239.

Copyright License Effective

The Court of Appeal of California, First Appellate District, Division Four, has decided, in an unpublished opinion, that a 1991 written partnership agreement among the members of the punk group the Dead Kennedys constituted a sufficient writing to meet the Copyright Act's requirement for assignment of exclusive rights in the group members' copyrights to the partnership. Dead Kennedys v. Biafra, A094272. Former group leader Jello Biafra argued that the written agreement wasn't contemporaneous with the band's original 1981 oral partnership agreement. The appeals court noted, however, that 'the 1991 agreement memorializing the transfer of licenses to Decay Music [ie, the band partnership] was negotiated between the parties, set forth the terms of the license and was executed during the life of the license. The agreement thus satisfied the copyrights law's written instrument requirement.' The court of appeal went on to uphold the band's claims against Biafra and his Alternative Tentacles Records over handling of the group's record sales.

Punitive Damages Available

A Manhattan federal court has decided that claims for punitive damages can be presented to juries in copyright cases in which there is willful infringement, and a statutory award is excluded or actual damages plus profits are sought. TVT Records v. The Island Def Jam Music Group, 02-6644.