Bit Parts

Copyright Infringement/File Sharing

The U.S. District Court for the District of Arizona decided in a music file-sharing case that the phrase 'offering to distribute,' included in defining the term 'publication' in Sec. 101 of the Copyright Act, doesn't amount to a 'distribution' under Sec. 106(3) of the Act. Atlantic Recording Corp. v. Howell, CV-06-02076-PHX-NVW. '[A] distribution must involve a 'sale or other transfer of ownership' or a 'rental, lease, or lending' of a copy of the work. The recording companies have not proved an actual distribution of 42 of the copyrighted sound recordings at issue,' the district court noted. The court went on to find: 'The recording companies motion for summary judgment also fails because they have not proved that a KaZaA user who places a copyrighted work into the shared folder distributes a copy of that work when a third-party downloads it. ' If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right.'

Copyright Infringement/Summary Judgment

The U.S. District Court for the Northern District of California dismissed a suit alleging that the animated show 'SpongeBob SquarePants' infringed on the plaintiff's limited-publication, four-panel comic strip 'Mr. Bob Spongee, The Unemployed Sponge.' Walker v. Viacom International Inc., C 06-4931 SI. The district court determined 'that the similarities between the two characters are limited to the stock elements used to humanize a sponge, and that the dissimilarities are so significant that, as a matter of law, defendants are entitled to summary judgment on plaintiff's claim of copyright infringement. In addition, defendants have submitted extensive and undisputed evidence of defendants' independent creation of SpongeBob SquarePants.'

Music Agreements/New-Technology Uses

The U.S. District Court for the Southern District of New York held that a 1984 agreement between Richie Ramone and the corporate entity of punk-rock icons The Ramones included the right to exploit recordings of Richie's compositions in digital formats. Reinhardt v. Wal-Mart Stores Inc., 07 Civ. 8233(SAS). The 1984 contract stated that ”Records,' 'phonograph records,' 'recordings,' and 'derivatives' means all forms of reproduction including pre-recorded tapes and discs and electronic video recordings, now or hereafter known, manufactured or sold primarily for home use, school use, juke box use or use on means of transportation.' Dismissing the copyright-infringement suit, the district court concluded: 'The phrase 'now or hereafter known,' when referring to forms of reproduction, reveals that future technologies are covered by the agreement. This language creates an expansive rather than a restrictive conveyance of rights. It is not reasonable to construe the phrase 'all forms' 'now or hereafter known' to exclude Defendants' alleged digital download form, which now constitutes a form of reproduction.'

Royalty Suit/Right to Trial by Jury

The California Court of Appeal decided that the trust for the record royalties of Bing Crosby was entitled to a jury trial in a suit alleging failure to pay a most-favored-nations rate for sales of Crosby CDs. HLC Properties Ltd. v. MCA Records Inc., B191608. In California, a civil litigant has the right to a jury trial on legal, as opposed to judge-heard equitable, causes of action. In an unpublished opinion, the court of appeal stated: 'After the dismissal of the equitable causes of action for imposition of a constructive trust and an accounting on June 13, 2003, the amended complaint contained causes of action ' all of which sought monetary damages ' the classic scenario involving legal claims.'

Sampling Suits/Sound Recordings

The U.S. District Court for the Eastern District of Michigan dismissed a copyright-infringement suit over the alleged use of a rhythm sample and granted the defense motion for sanctions. Fharmacy Records v. Nassar, 05-72126. The plaintiffs claimed unauthorized use of the rhythm line from the recording 'ESS Beats' in 'Shot Down,' a track on DMX's platinum-selling album Grand Champ. But the district court noted: 'Because of the differences between the track submitted by the plaintiffs and the rhythm line recorded in 'Shot Down,' as confirmed by experts on both sides, the plaintiffs have failed to offer proof that [plaintiff Shelton] Rivers's sound recording was duplicated. Simply put, the track on 'Shot Down' is different from 'ESS Beats.” The court added: 'In their motion for sanctions, the defendants contend that the plaintiffs and their attorney have engaged in intentional misconduct and have committed a fraud upon the court by manipulating, fabricating, and destroying evidence. ' It must be emphasized that this is not a case involving mere gamesmanship or garden variety discovery abuses. The actions of the plaintiffs and their attorney in this case are so egregious that they have forfeited their right to proceed in court. The plaintiffs clearly have no respect for the civil justice system, and it would be unfair to require the defendants to defend this case any further.'

Copyright Infringement/File Sharing

The U.S. District Court for the District of Arizona decided in a music file-sharing case that the phrase 'offering to distribute,' included in defining the term 'publication' in Sec. 101 of the Copyright Act, doesn't amount to a 'distribution' under Sec. 106(3) of the Act. Atlantic Recording Corp. v. Howell, CV-06-02076-PHX-NVW. '[A] distribution must involve a 'sale or other transfer of ownership' or a 'rental, lease, or lending' of a copy of the work. The recording companies have not proved an actual distribution of 42 of the copyrighted sound recordings at issue,' the district court noted. The court went on to find: 'The recording companies motion for summary judgment also fails because they have not proved that a KaZaA user who places a copyrighted work into the shared folder distributes a copy of that work when a third-party downloads it. ' If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right.'

Copyright Infringement/Summary Judgment

The U.S. District Court for the Northern District of California dismissed a suit alleging that the animated show 'SpongeBob SquarePants' infringed on the plaintiff's limited-publication, four-panel comic strip 'Mr. Bob Spongee, The Unemployed Sponge.' Walker v. Viacom International Inc., C 06-4931 SI. The district court determined 'that the similarities between the two characters are limited to the stock elements used to humanize a sponge, and that the dissimilarities are so significant that, as a matter of law, defendants are entitled to summary judgment on plaintiff's claim of copyright infringement. In addition, defendants have submitted extensive and undisputed evidence of defendants' independent creation of SpongeBob SquarePants.'

Music Agreements/New-Technology Uses

The U.S. District Court for the Southern District of New York held that a 1984 agreement between Richie Ramone and the corporate entity of punk-rock icons The Ramones included the right to exploit recordings of Richie's compositions in digital formats. Reinhardt v. Wal-Mart Stores Inc., 07 Civ. 8233(SAS). The 1984 contract stated that ”Records,' 'phonograph records,' 'recordings,' and 'derivatives' means all forms of reproduction including pre-recorded tapes and discs and electronic video recordings, now or hereafter known, manufactured or sold primarily for home use, school use, juke box use or use on means of transportation.' Dismissing the copyright-infringement suit, the district court concluded: 'The phrase 'now or hereafter known,' when referring to forms of reproduction, reveals that future technologies are covered by the agreement. This language creates an expansive rather than a restrictive conveyance of rights. It is not reasonable to construe the phrase 'all forms' 'now or hereafter known' to exclude Defendants' alleged digital download form, which now constitutes a form of reproduction.'

Royalty Suit/Right to Trial by Jury

The California Court of Appeal decided that the trust for the record royalties of Bing Crosby was entitled to a jury trial in a suit alleging failure to pay a most-favored-nations rate for sales of Crosby CDs. HLC Properties Ltd. v. MCA Records Inc., B191608. In California, a civil litigant has the right to a jury trial on legal, as opposed to judge-heard equitable, causes of action. In an unpublished opinion, the court of appeal stated: 'After the dismissal of the equitable causes of action for imposition of a constructive trust and an accounting on June 13, 2003, the amended complaint contained causes of action ' all of which sought monetary damages ' the classic scenario involving legal claims.'

Sampling Suits/Sound Recordings

The U.S. District Court for the Eastern District of Michigan dismissed a copyright-infringement suit over the alleged use of a rhythm sample and granted the defense motion for sanctions. Fharmacy Records v. Nassar, 05-72126. The plaintiffs claimed unauthorized use of the rhythm line from the recording 'ESS Beats' in 'Shot Down,' a track on DMX's platinum-selling album Grand Champ. But the district court noted: 'Because of the differences between the track submitted by the plaintiffs and the rhythm line recorded in 'Shot Down,' as confirmed by experts on both sides, the plaintiffs have failed to offer proof that [plaintiff Shelton] Rivers's sound recording was duplicated. Simply put, the track on 'Shot Down' is different from 'ESS Beats.” The court added: 'In their motion for sanctions, the defendants contend that the plaintiffs and their attorney have engaged in intentional misconduct and have committed a fraud upon the court by manipulating, fabricating, and destroying evidence. ' It must be emphasized that this is not a case involving mere gamesmanship or garden variety discovery abuses. The actions of the plaintiffs and their attorney in this case are so egregious that they have forfeited their right to proceed in court. The plaintiffs clearly have no respect for the civil justice system, and it would be unfair to require the defendants to defend this case any further.'