Federal Judge Orders BlueBeat.com to Stop Selling Beatles Songs

The works of most every major recording artist are now legally available for download. That is, however, except for those of The Beatles. Thus, it came as quite a surprise when, on October 30, the music sharing website BlueBeat.com began offering 25-cent downloads of Beatles music.

The record label EMI, which owns the rights to Beatles recordings, quickly brought suit against BlueBeat alleging copyright infringement; and last Thursday a federal judge ordered BlueBeat to stop selling songs by the Beatles and other artists.

In issuing the order, U.S. District Judge John F. Walter dismissed the arguments of Hank Risan, the owner of BlueBeat and several other companies named as defendants in the lawsuit. Risan’s defense was that he owned the music he was selling because he had re-recorded new versions of the songs using a process he called “psycho-acoustic simulation.”

Most copyright experts regard this defense as absurd. Ben Shaffer, of the Copyrights and Campaigns blog, has noted that BlueBeat’s defense is based on copyright law allowing musicians to produce cover versions of songs. However, “[i]t does not permit a company to re-record a recording by some new technical means–even a ‘psycho-acoustic simulation’ device–and then sell the ‘new’ recordings,” he wrote.

Risan is facing up to one million dollars in damages under the Copyright Act.

– Chad Burchard

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Monday Morning JetLawg

In the news . . .

Federal judge sides with artist over trademark dispute with University of Alabama for highly accurate sports paintings.

More tax trouble–actor Nicholas Cage owes $6 million.

All-star pitcher busted for marijuana possession after being pulled over for speeding.

Actress Sandra Bullock and husband Jesse James fight custody battle with James’ ex-wife, and famous porn star, Janine Lindemulder.

Canadian court convicts man of Internet luring for not taking reasonable steps to check child’s age.

To keep with changing times, Disney reverts Mickey Mouse to his wiry, ornery, 1930s form.

Recap of most popular, banned iPhone apps.

Canadian judge confiscates boy’s Nintendo Wii for bad behavior. Meanwhile, China looks to abandon boot camps for Internet-addicted youths after death of 15-year-old boy.

Is AT&T’s lawsuit against Verizon for its “there’s a map for that” commercial the right approach? Coincidentally, the inventor of the cell phone, Martin Cooper, goes on record stating that phones have gotten too complex.

Gone so soon? Federal judge orders BlueBeat to stop its 25-cent sales of songs from the Beatles catalog.

 

Sesame Street Song as Torture

For many people, the Sesame Street theme song evokes images of a diverse group of joyous children playing with Big Bird and the other muppets. But for some Guantanamo Bay, Iraq, and Afghanistan detainees, the song might be a reminder of long nights interrupted by screaming kids looking for the location of Sesame Street, as the show’s theme song is one of several songs allegedly used by the United States military as part of its interrogation techniques.

On Thursday, October 22, the National Security Archive, a private research institute and library situated at George Washington University, filed Freedom of Information Act requests to obtain the names of the songs and artists used in interrogations. (The following document provides a list of bands.) Popular musicians such as Tom Morello of Rage Against the Machine and bands like R.E.M. and Pearl Jam, as part of the Close Gitmo Now campaign, have endorsed the requests. The prevailing sentiment among these musicians is that their music is supposed to promote peace and justice, not cracking the minds of detainees.

CNN reported that some musicians may be contemplating legal action against the U.S. government. The most likely claim would involve copyright infringement, but the musicians are unlikely to prevail in a suit. Section 101 of the Copyright Act states that to perform publicly means:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;

Although detainees probably do not fall within a “normal circle of a family and its social acquaintances,” the military usually played the music for only a few detainees and thus the public part is unlikely to be met.

However, even if the musicians would successfully argue for a public performance, a victory may still be elusive. Section 114(d)(1)(c)(iii) exempts from copyright infringement “a transmission within a business establishment, confined to its premises or the immediately surrounding vicinity.” The military could persuade a judge that its business establishment is the detention center and that the sounds were confined to that area.

– Chris Rigsby

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The Genetic Information Nondiscrimination Act: A Curveball for MLB?

In an effort to protect people’s genetic information from exploitation, President George W. Bush signed the Genetic Information Nondiscrimination Act (GINA) into law on May 21, 2008. The Act forbids insurance providers from denying medical coverage to otherwise healthy people because they have a genetic predisposition to a particular disease, and thus have a higher chance of developing that disease in the future. Additionally, the Act prohibits genetic discrimination in the workplace by “bar[ring] employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions.” Although most employers do not require potential employees to submit DNA samples in order to gain employment, this practice is commonplace for one preeminent American sports organization–Major League Baseball (MLB).

In recent months, MLB has admitted to using DNA testing on prospective Latin American players, due to the increased tendency of members of this minority group to falsify their age and identity in order to secure a position on a Major League team. My hometown team, the Washington Nationals, dealt first-hand with this type of fraud when it recently discovered that its 19-year-old shortstop from the Dominican Republic, Esmailyn Gonzales, who signed with the Nats for a record $1.4 million, was actually 23-year-old Carlos Alvarez Daniel Lugo.

MLB uses this genetic information to ascertain the true age of a player in order to ensure that it will receive its expected return on its investment. However, a New York Times article raised the concern that such DNA information could also be used to predict a player’s medical future. With such information, MLB could use a player’s susceptibility to an illness to gauge the approximate length of the player’s career, which could in turn influence MLB’s decision to hire or fire a player–the precise use GINA forbids.

With GINA’s November 21 effective date looming around the corner, many have begun to speculate about the implications of the Act on this particular MLB hiring practice. Questions have been raised about whether GINA will impact MLB at all, as the players voluntarily consent to the DNA testing. Furthermore, because the individuals who undergo the DNA test are normally not U.S. citizens, it is unclear whether they would qualify for the protection afforded by GINA. A legal argument can be made, however, that such consent cannot really be deemed “voluntary,” as a significant employment opportunity (and an absurd amount of money) depend on a player’s compliance with the request. Additionally, one could argue that because these international players are seeking employment with American teams, GINA should be extended to apply to them.

It remains to be seen whether the Equal Employment Opportunity Commission, the agency charged with implementing GINA, will enforce the Act against MLB, and MLB has not indicated whether it will continue to employ DNA testing after GINA becomes effective next month. It will be interesting to see whether GINA will serve as a new basis for litigation for those players whose contracts have been voided as a result of their genetic information.

– Casey McLaughlin

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The End of Scientology?

A French court last Tuesday convicted the Church of Scientology and six of its leaders of organized fraud. The church intends to appeal, labeling the judgment a “modern inquisition” and a threat to freedom of religion in France. A former Scientology official testified against the church, calling it “a church built on lies.” Although the conviction resulted in a hefty fine, the judgment does not ban the church from operating in France as prosecutors had hoped. Apparently, an “accidental” change in French law made banning fraudulent organizations impossible. Although the law was later amended, it is unclear whether the court could retroactively apply the changes to the fraud convictions. It’s not the first time Scientology has come under legal attack in Europe. In 2007, a Belgian prosecutor recommended bringing fraud and extortion charges against the church, and the German government considers the church “a commercial enterprise that takes advantage of vulnerable people.”

The French court based its conviction on the church’s use of an “E-meter” in recruiting new members. The church contends that the device can  measure “spiritual duress” in humans. The court found that the church used results from the medically and scientifically unproven device to sell products and services to new recruits to rid themselves of the “body thetans” causing the  duress, resulting in fraud on the plaintiffs.

Is this conviction the end of Scientology as we know it? Probably not. The United States offers constitutional protection to Scientology as no other country does. Meanwhile, France recognizes Scientology as a sect, not a religion, and the church does not benefit from tax-exempt status in France as it does in the United States. Although critics consider the church a brainwashing, moneymaking cult, Scientology seems to be on solid ground as a recognized religion in the United States. In 1999, the State Department went as far as issuing a human rights report stating that the church was unfairly discriminated against in France and Germany. It seems that in the United States, the departure of well-known movie director Paul Haggis from the religion will have a bigger impact than France’s legal declaration.

– Kate Kliebert

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JETL Symposium Video Now Available

Video footage from the Vanderbilt Journal of Entertainment and Technology Law’s annual symposium entitled Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works is now available here. Thanks to all who attended!

Part 1

Part 2

Part 3

The video is also available from iTunes U.

 

ESPN vs. Deadspin

ESPN baseball analyst and former NY Mets GM Steve Phillips was recently fired by the network after the NY Post ran a story exposing him for an extramarital affair with a 22-year old production manager and coworker named Brooke Hundley. Apparently things got ugly for Phillips after he tried to break it off and Hundley all but boiled his daughter’s rabbit. Anyway, prior to the Post story, Deadspin, a widely read sports blog, had apparently approached ESPN with questions about the affair, but was told there was nothing to the rumors. That obviously wasn’t the case, and when the Post ran what should have been Deadspin’s story, the blog decided to exact some revenge on the “worldwide leader in sports” by posting a series of entries under the tagline, “ESPN Horndog Dossier.” These posts told the stories of several other ESPN employees who allegedly engaged in intra-network sexual relationships. One such relationship even led to a divorce for one ESPN personality. As you might imagine, the network was none-too-pleased with Deadspin’s decision to air its dirty laundry, and eventually released a statement calling Deadspin’s “rumor mongering” despicable.

This is all very juicy and interesting, but what’s the legal issue? Well this isn’t the first time Deadspin has been in the middle of a firestorm over the sexually inappropriate actions of an ESPN employee. Back in 2007, Deadspin posted a series of entries about ESPN NFL analyst Sean Salisbury, claiming that he took pictures of inappropriate parts of his body on his cell phone, then showed those pictures to female coworkers at the network. Salisbury didn’t like it very much, and just recently filed a defamation suit against Gawker Media (owner of Deadspin). The blog may have opened itself up to more litigation of the sort in the aftermath of the Steve Phillips situation. But defamation claims are tough to prove. First of all, Salisbury or anyone else would have to show that what Deadspin wrote was untrue. Then there’s the question of whether the alleged victims are public or private figures. If ESPN personalities are public figures, then they’ll have to show “actual malice” on the part of Deadspin. Clay Travis, a writer at the popular sports blog Fanhouse (and also a graduate of VULS), wrote an interesting analysis of these legal questions.

I’m no defamation expert, but I doubt the folks at Deadspin just made this stuff up, and I bet the lawyers at Gawker feel pretty good about defending the Salisbury suit and any others that may come their way. But still, these stories revealed some embarrassing details about real peoples’ lives, and I wouldn’t be surprised if some of them decide to lawyer up. So while stories like this may temporarily send Deadspin’s site visits through the roof, the backlash may send their its bills in the same direction.

– Mark Donnell

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Monday Morning JetLawg

In the news . . .

High school students and ACLU sue Indiana school district after officials suspend students for Myspace photos.

Tracking devices on new cars continuing to raise privacy concerns.

Study: Those who download the most music illegally also buy the most.

Court awards Facebook $711 million in damages from spammer, criminal case continues.

More celebrity tax trouble–former NBA all-star owes $4 million. Meanwhile, ex-wife and ex-girlfriend of NFL coach claim physical abuse.

Woman posts sexy Craigslist ad with identity of daughter’s nine-year-old classmate.

ICANN rules to allow non-Latin letters as top-level domain names.

Arizona Supreme Court holds that metadata in state documents is public record.

Apple continues to limit Palm Pre enjoyment, this time by blocking ability to sync to the company’s latest version of iTunes (9.0.2).

Possible hoax? Bluebeat.com claims to be offering the entire Beatles catalog at a discounted price, plus unlimited streaming.

 

Treading the Line: Fair & Derivative Uses

On Friday, October 23, the Vanderbilt Journal of Entertainment and Technology Law held its annual symposium. This year’s symposium was entitled Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works. The symposium covered a variety of topics related to digital copyright, but the focus was on exploring the intersection of fair and derivative uses of copyrighted works. This issue was tackled head on by our first panel, and described briefly below.

Section 106(2) of the Copyright Act grants copyright owners the right “to prepare derivative works based upon the copyrighted work.” The act defines a derivative work (in section 101) as “a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” The typical derivative work is the motion picture version of a book. But in the digital age, user-generated content like mashups are creating whole new kinds of derivation, and pushing the boundaries of copyright as a result.

Notwithstanding the rights granted in section 106, section 107 of the Copyright Act deems “the fair use of a copyrighted work . . . not an infringement of copyright.” In interpreting the fair use standard, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. established the now well known and very popular transformative use test. The Court noted that “transformative works . . . lie at the heart of the fair use doctrine[],” and many transformative uses have been held fair as a result. Much of the user-generated content online justifies itself as fair use on these grounds.

The confrontation between fair use and derivative rights in the digital age is therefore clear. On the one hand, Campbell has made most “transformative” uses fair use. On the other hand, the Copyright Act grants the author the exclusive right to “transformed” derivative uses. And online, entire genres of user-generated content are based around the concept of transformation. How ought copyright law treat these works? Can a meaningful distinction between the transformative and the transformed be drawn? Our attendees’ answers to these questions will be available soon–both in the published symposium issue (early next year) and online video clips of our panels (much sooner).

– P.R.

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Your Baby is No Einstein

Disney’s Baby Einstein, the wildly popular brand of DVDs, CDs, and toys designed for infants, has been making headlines with its new refund program for DVDs purchased between June 5, 2004 and September 4, 2009. Protesters of Baby Einstein see this as Disney’s admission that the DVDs do not, in fact, make your baby smarter. This isn’t the first time Baby Einstein has been under attack.

In 2006, the Campaign for a Commercial-Free Childhood (CCFC) petitioned the FTC to crack down on Baby Einstein for false and deceptive advertising because the DVDs were not educational, but in fact detrimental to infant development. Shortly after, Disney stopped promoting the DVDs as “educational.” Last year, lawyers threatened a class action lawsuit for unfair and deceptive practices if Disney did not offer full refunds of the DVDs.

The allegations against Baby Einstein may be well-founded. The Academy of Pediatricians recommends no television for children under two years old. A recent Harvard study of the effect of Baby Einstein DVDs links their use to lower test scores and lower vocabularies. Baby Einstein interprets the findings of the study, published in a recent issue of Pediatrics, differently. On its official website, Baby Einstein argues that infant viewing of television has “a neutral to no effect” on child development.

Now, CCFC wants Disney to change the name from “Baby Einstein.” According to Allen Kanner, a psychologist on the steering committee of CCFC, says that the name still carries “a strong implication that it makes your child or baby smarter.”

With the investment in its brand name, estimated at $40 million, and its corner in the market, it’s no wonder that Disney does not want to change the name of its product. Since the product is so well known, and Disney stopped advertising its product as educational, any legal action by CCFC to get Disney to change the name of its product will likely fail.

The argument is incredibly similar to an attack on the trademark of Coca-Cola beverages. In the 1920 case Coca-Cola Co. v. Koke Co., a competitor of Coca-Cola argued that the product name was deceptive because the beverage no longer contained cocaine. The Supreme Court of the United States rejected any fraud in the name of the product, reasoning that the name had come to signify the product itself rather than describe the now-absent qualities of the product. The same reasoning presents a sound argument for the continued use of the name “Baby Einstein,” which is at least recognized as infant-geared DVDs.

Whether Baby Einstein actually is detrimental to infant development, it will be interesting to see how CCFC’s campaign against Baby Einstein plays out. With all the negative publicity Baby Einstein has received recently, CCFC has a hard case to prove that consumers still associate the products with child education. Sitting your infant in front of the television for an hour doesn’t intuitively seem like a way to turn your child into the next Nobel Laureate.

– Theresa Weisenberger

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