Cameo Clips

DIGITAL DOWNLOADING/NO PUBLIC PERFORMANCE

The U.S. District Court for the Southern District of New York, in a case of first impression, decided that a digital download of a music file does not constitute a 'public performance' within the meaning of Sec. 101 of the U.S. Copyright Act. U.S. v. American Society of Composers, Authors and Publishers, 41-1395 (WCC). The ruling resulted from a rate proceeding between public-performance rights society ASCAP, and online providers of streamed and downloaded music content that included AOL, RealNetworks and Yahoo. The Copyright Act defines 'perform' as 'recite, render, play, dance, or act it, either directly or by means of any device or process.' But the statute doesn't define 'recite' 'render' or 'play.'

Acknowledging that ”perform' should be broadly construed,' the district court nevertheless continued: '[W]e can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition. Rather, the downloading of a music file is more accurately characterized as a method of reproducing that file.'

The court further stated: 'Moreover, we are not persuaded by ASCAP's argument that downloaded music files are indistinguishable from streamed performances because, after a certain amount of digital data has been transmitted to the client computer, the purchaser can begin listening to the transmitted portion of the music file. However, the mere fact that a customer's online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical broadcast. Surely ASCAP would not contend that if a retail purchaser of musical records begins audibly playing each tape or disc as soon as he receives it the vendor is engaging in a public performance.'

MANAGEMENT AGREEMENTS/TORTIOUS INTERFERENCE

The U.S. Court of Appeals for the Sixth Circuit found a genuine issue existed as to whether a reasonably diligent investigation by Los Lonely Boys' prior manager Jimmy Stratton would have led him to discover that the band's current manager Kevin Wommack tortiously induced group members to breach their agreement with Stratton less than three years before Stratton sued Wommack. Stratton v. Wommack, 06-5634. In 1996, Tennessee-based Stratton had first entered into an agreement to manage the Los Lonely Boys, made up of three brothers, Henry, JoJo and Ringo Garza. In 1999, the parties executed a five-year memorandum of understanding that gave Stratton an additional two-year option. Also in 1999, record producers Jim Tullio and Rob Fabroni went to see the Los Lonely Boys in concert. Stratton was aware of the visit. Around the same time, the Garzas left Nashville to return to their home state of Texas and broke off contact with Stratton, accusing him of failing to provide an accounting of his management commissions. In March 2000, the Garzas sent Stratton formal notice of termination of the management agreement. Meanwhile, Wommack began booking the band. In 2002, the Garzas signed a contract for Wommack to serve as Los Lonely Boys manager. Stratton claimed he didn't become aware of this development until he read an article in the Austin American-Statesman newspaper in August 2003. He sued Wommack in Nashville federal district court in October 2003. The district court dismissed the suit under Tennessee's three-year statute of limitations for a claim of tortious inducement of breach of contract.

Vacating and remanding, the Sixth Circuit noted, in an unpublished opinion: 'There is little in the record as to when due diligence should have enabled Stratton to discover that Wommack was involved in inducing the Garzas to breach ' Oddly, Wommack's appellate brief, like his briefs below, seems more tailored to a statute of limitations defense on behalf of record producers Tullio and Fabroni, who are not parties here ' Was there evidence available to Stratton, before the August 2003 Austin newspaper article, that should have suggested Wommack had a role in inducing the breach, such as articles in readily available newspapers, industry publications, or websites?'

DIGITAL DOWNLOADING/NO PUBLIC PERFORMANCE

The U.S. District Court for the Southern District of New York, in a case of first impression, decided that a digital download of a music file does not constitute a 'public performance' within the meaning of Sec. 101 of the U.S. Copyright Act. U.S. v. American Society of Composers, Authors and Publishers, 41-1395 (WCC). The ruling resulted from a rate proceeding between public-performance rights society ASCAP, and online providers of streamed and downloaded music content that included AOL, RealNetworks and Yahoo. The Copyright Act defines 'perform' as 'recite, render, play, dance, or act it, either directly or by means of any device or process.' But the statute doesn't define 'recite' 'render' or 'play.'

Acknowledging that ”perform' should be broadly construed,' the district court nevertheless continued: '[W]e can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition. Rather, the downloading of a music file is more accurately characterized as a method of reproducing that file.'

The court further stated: 'Moreover, we are not persuaded by ASCAP's argument that downloaded music files are indistinguishable from streamed performances because, after a certain amount of digital data has been transmitted to the client computer, the purchaser can begin listening to the transmitted portion of the music file. However, the mere fact that a customer's online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical broadcast. Surely ASCAP would not contend that if a retail purchaser of musical records begins audibly playing each tape or disc as soon as he receives it the vendor is engaging in a public performance.'

MANAGEMENT AGREEMENTS/TORTIOUS INTERFERENCE

The U.S. Court of Appeals for the Sixth Circuit found a genuine issue existed as to whether a reasonably diligent investigation by Los Lonely Boys' prior manager Jimmy Stratton would have led him to discover that the band's current manager Kevin Wommack tortiously induced group members to breach their agreement with Stratton less than three years before Stratton sued Wommack. Stratton v. Wommack, 06-5634. In 1996, Tennessee-based Stratton had first entered into an agreement to manage the Los Lonely Boys, made up of three brothers, Henry, JoJo and Ringo Garza. In 1999, the parties executed a five-year memorandum of understanding that gave Stratton an additional two-year option. Also in 1999, record producers Jim Tullio and Rob Fabroni went to see the Los Lonely Boys in concert. Stratton was aware of the visit. Around the same time, the Garzas left Nashville to return to their home state of Texas and broke off contact with Stratton, accusing him of failing to provide an accounting of his management commissions. In March 2000, the Garzas sent Stratton formal notice of termination of the management agreement. Meanwhile, Wommack began booking the band. In 2002, the Garzas signed a contract for Wommack to serve as Los Lonely Boys manager. Stratton claimed he didn't become aware of this development until he read an article in the Austin American-Statesman newspaper in August 2003. He sued Wommack in Nashville federal district court in October 2003. The district court dismissed the suit under Tennessee's three-year statute of limitations for a claim of tortious inducement of breach of contract.

Vacating and remanding, the Sixth Circuit noted, in an unpublished opinion: 'There is little in the record as to when due diligence should have enabled Stratton to discover that Wommack was involved in inducing the Garzas to breach ' Oddly, Wommack's appellate brief, like his briefs below, seems more tailored to a statute of limitations defense on behalf of record producers Tullio and Fabroni, who are not parties here ' Was there evidence available to Stratton, before the August 2003 Austin newspaper article, that should have suggested Wommack had a role in inducing the breach, such as articles in readily available newspapers, industry publications, or websites?'