Cameo Clips

A Manhattan federal District Court determined the formula for 'reasonable fees' for blanket song performance licenses for Internet service providers AOL, RealNetworks and Yahoo! U.S. v. American Society of Composers, Authors and Publishers, Civ.A. 41-1395(WCC). The district court found 'no fundamental fault with the formula proposed by ASCAP for computing the fee, which begins with the net revenue of the proprietor of the [W]eb site that performs the music and applies to it a music-use-adjustment factor which reduces the revenue to a level intended to represent the portion attributable to the value of music on the [W]eb site and computes the licensing fee as a percentage of that music-generated revenue. ' [T]he fee for a blanket license for unlimited performance of all music in the ASCAP repertory for all open periods to Dec. 31, 2009 [including several previous years] shall be determined by multiplying the total revenue of the licensed business unit ' less customary deductions for advertising sales commissions and traffic acquisition costs, by a music-use-adjustment fraction whose numerator is the total number of hours music is streamed to users by the licensee (as currently measured by the Applicant [i.e., ISP]) and whose denominator is the total number of hours of use of the licensee's [W]eb site (as measured by comScore or other means approved by
the Court) and applying to the resulting music-use-adjusted revenue a
fee rate of 2.5%.' The district court excluded RealNetworks' TPS [Tech- nology Products and Solutions] division for now by noting: 'In a substantial portion of its music streaming, the TPS unit is serving as a 'back end' or wholesale supplier to a retailer, such as Verizon, who publicly relays the music to its subscribers and, by applying to ASCAP ' may have obtained its own license for at least a substantial portion of such performances.'

The U.S. District Court for the Northern District of Indiana refused to enforce an e-mail from defense counsel to plaintiff's counsel as confirmation of a settlement of complicated litigation over the unauthorized use of the song 'Wonders of Indiana' by a convention and visitors' bureau. Janky v. Batistatos, 2:07-CV-339 PPS APR. Songwriter Cheryl Janky won a jury verdict, but the defendants appealed and Janky appealed over sanctions against her counsel. Janky's lawyer sent a settlement proposal to the defendants' lawyer, who responded in a Dec. 2, 2007 e-mail that his clients accepted the offer but added: 'Although not explicitly mentioned in your proposal, the parties will enter into a mutual global release. We will provide the initial proposed release language in the near future.' Janky filed a motion for enforcement of settlement. The district court first noted: 'This is one of those cases that gives lawyers a bad name. It began as a routine copyright infringement dispute but has deteriorated into a nuclear arms race of costly litigation tactics and the worst kind of mean spirited attorney game-playing.' The court then decided: 'Janky and the Defendants never entered the mutual global release that was directly envisioned by the December 2 e-mail and therefore failed to create an enforceable agreement. ' The term 'mutual global release' is not definite enough to be enforceable. ' The phrase 'mutual global release' does not come close to adequately describing how the parties intended to complete the complicated task of terminating at least four separate lawsuits, each in various stages of litigation and jurisdictions. ' In sum, the parties have not agreed on the details making up their mutual global release, and I will not create those details for them; they will need something more than a half-page e-mail to disentangle this Gordian knot.'

BLANKET SONG LICENSES/INTERNET SERVICES