Royalty Decision for Men at Work

“Down Under” was a huge song in the 80s, and it is making news again.  The owner of the rights to that song, Larrikin Music, sued Men at Work, saying their 80s classic infringed on their copyrights.  They own the rights to “Kookaburra Sits in the Gum Tree,” and say that Men at Work used part of their melody without clearance.

And Australian Federal Court judge Peter Jacobsen decided last week that Larrikin was right.  At issue was a flute riff that appears in “Down Under” three separate times.  Interestingly, it wasn’t Larrikin’s sense of injustice that led to this lawsuit – it was a quiz show.

Spicks and Specks, a trivia show, asked contestants to name the folksong that could be heard in “Down Under.”  Kookaburra was the answer, and Larrikin Managing Director Norman Lurie said, “Hey, yeah, that does sound familiar.” (Or so we can conjecture).   And thus started the three year battle that culminated in Judge Jacobsen finding for Larrikin.

Judge Jacobsen said, “I would emphasize that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the “hook” of that song.”  If it were, the damages paid by Men at Work could be much more substantial.

CNN reported on the story and quoted Daniel Mullensiefen, co-director of the masters program at Music, Mind, and Brain at London’s Goldsmiths University, as saying, “There’s a lot more to “Down Under” than that flute melody.  It’s not the main melody and  not the main hook and I suppose that in the end will mean that it will be a minor share of the royalties that this publisher can claim now.”

According to Men at Work, the reference to Kookaburra was “completely innocuous.”  Songwriters Colin Hay and Ron Strykert say that the flute riff wasn’t even in the original song, that they wrote it for acoustic guitar and they play it that way today.  Larrikin bought the rights to the song for $6100 and is now seeking 40 to 60 percent of Men at Works’ royalties from the song.

Tom Service had this to say on his blog on the Guardian’s website, “If that kind of micro-sampling is to become the subject of court cases the world over, no song that has ever been released is safe.”  If Larrikin is entitled to royalties, the statute of limitations has run out so they will not receive any royalties from the 80s or 90s, when the song was wildly popular.

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And the Verdict Is…

Guilty. The four men that made up the Sweden-based Pirate Bay filesharing site have been found guilty in the momentous trial today. According to various sources, “the court has found that by using Pirate Bay’s services there has been file-sharing of music, films and computer games to the extent the prosecutor has stated in his case.” The men have been ordered jail-time of one year, and $905,000 each equating to a total of about $3.6 million. The funds will be distributed to various entertainment studios and companies, including Warner Bros, EMI, Columbia Pictures, and Sony Music.

Although the verdict has been decided, the four men will be allowed to appeal, likely on the basis that the site never actually hosted the copyrighted material, just acted as a catalyst by providing the technology for its 22 million users to download content via torrents. While the judge in the trial noted that the court took into account the ad-driven nature of the site, the defendants argued that in no way was the site commercially driven, an argument that will certainly re-surface during the appeals process.

The Associated Press reported that ” Swedish authorities caved in to pressure from the U.S. when they launched the crackdown on The Pirate Bay in 2006.” Following that trial and the presently concluded case, a grassroots movement fueled by social networking and underground message boards cultivated a mass social a political zeitgeist, arguing the intrusion of the government on the public’s use of the Internet. New bills and laws are currently being developed across Europe in an attempt to define legislation paramaters of the largely polar issue.

“This is an Internet Problem Not a Pirate Bay Problem”

As closing arguments concluded this week in the widely publicized Pirate Bay trial, defendant Fredrik Neij made it clear that he and his team is innocent, claiming that the problem lies not in their technology but on the Internet supervision in general. If convicted, the four-member team of Pirate Bay operations could face up to two years in prison and a damage claim of up to $12.7 million.

vnunet.com is reporting that the defendants noted that “a survey he had undertaken of more than 1,000 torrents showed that 80 per cent were for legitimate downloads,” and that  “the prosecution did not carry out such a survey.” While the prosecution also claimed that the site makes over $1 million in advertising revenue, defendant representative Jonas Nilsson completely rejected the notion, pointing out that the site actually runs at a loss and that all revenue goes towards maintenance.

The crux of the Pirate Bay trial is largely correlated with the user aspect of the website. Fundamentally speaking, users upload their own content to the Pirate Bay servers, basically providing a portal for other users to download. This is basic sharing. So the defense is in fact correct by claiming that this entire trial is indicative of a much bigger problem, namely with the principles of net neutrality and how the web is surveilled. Whatever verdict the jury chooses to deliver in April will be a monumental precedence in the world of digital distribution and the protection of rights and IP.

YouTube Mutes Thousands of Videos Containing Unauthorized Music

Today was the day.  YouTube finally came around and decided that videos with copyright infringing music need to be taken down.  Instead of removing the videos entirely, they just muted all of the audio.  The story is all over the web, and folks are pretty mad about the “mass muting of millions of videos”.  This issue at hand is that for years now, users have been uploading videos to YouTube that contain major record label music and the video creators have never appropriately secured a synch license to use this music in their productions.  Synch licensing has typically been reserved for feature films and major television production companies and anyone that needed music for a small YouTube production had to choose among the following options:

1.  Make unauthorized use of their music collection,

2.  Pay a hefty synch fees to be used in their unmonetizable productions, or

3.  Turn to royalty free music libraries, like AudioMicro.

As of today, for the millions of YouTubers, there are now only 2 choices – either purchase stock music (easy, painless, and affordable) or try and legally license a track from a label (nearly impossible).  Copyrights are being protected and despite the chants of “boycott YouTube”, it’s likely that the other online video communities will eventually cave under RIAA pressure if they are to allow videos with record label material to be posted.

The future of music copyright online seems to be unfolding in 2009 – you can listen to music online for free, if you are willing to deal with advertisements; however, you can no longer synch music to your videos without secure a proper synch license.

Are “Take Down Notices” the Only Defense?

Earlier this week, a Northern California court ruled that websites hosting copyright infringing material are not liable for copyright infringment so long as the do not encourage the uploading and sharing of material that infringes upon the intellectual property rights of others and the sites “take the content down” when asked to do so.  This grammatically incorrect, huge run on sentence is just AudioMicro’s interpretation of the situation.

There are a few additional precautions the video sharing sites must take, like employing software to detect protected material, but nothing too difficult to administer.  The point of all this is that this ruling could have a huge impact on YouTube and other contest hosting, sharing, and storage applications like Audioo.com .  It is interesting to see the copyright infringement and online piracy laws take shape right before our eyes.  This particular ruling was s big blow to the studios and in effect, we draw the conclusion that the “Take Down Notice is the Only Defense”.

This is ruling is clearly NOT in favor of the artists, and “Take Down Notices” are just not enough to prevent sites from infringing upon the rights of copyright owners.  What is the point of copyright ownership?  The sole purpose is to protect IP and if the only protection we have is telling people not to use our IP after they have already used it, then copyright registration itself has become an arguably meaningless process.   In light of the repercussions of this decision, purchasing royalty free music and appropriately securing synchronization licenses for use in your video project does mean that you will not be subject to any take down notices.

Despite the short term impact of the ruling, this is definitely not the last time we will see IP and music copyright holders in the courtroom with video sharing, streaming, and storage platforms.   More to come as the story oy copyright holders vs. the web continues to unfold over time.