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Archive for October, 2007

Clay Walker’s “Fall” Video

Together with Clay Mills and Shane Minor, my new client Sonny Lemaire is one of three songwriters on Clay Walker’s new single, Fall, featured in the video link above.  The song is currently climbing Billboard’s Hot Country Songs chart and, after a 31-week run so far, is breaking well into the top ten!  Expect it to hit the top five very soon!

If you’re as old as I, you may remember Sonny’s old band from the Seventies, Exile, particularly their 1978 blockbuster hit Kiss You All Over, which was number one on the pop charts for over a month and had a chart life of 23 weeks.  The Exiles toured with many of the other greats of that glittery era, Boston, Heart, Aerosmith and Seals & Croft.  Sonny either wrote or co-wrote many of the band’s greatest hits.

Since that time Sonny has spent his time in Nashville’s songwriting community.  He was named BMI’s Songwriter of the Year in 1986 and has over 500 songs registered with the performance rights organization.  In 2002, he scored big with another number one song Beautiful Mess, recorded by Diamond Rio, which was also co-written by Sonny, Shane Minor and Clay Mills.  Sonny is no stranger to number one hits, however, since he has scored over ten in his illustrious career and has over 17 other BMI awards and honors.

My wish is that Sonny makes it to the top of the charts again! Sonny now lives in middle Tennessee with his family and continues to crank out hit songs.

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There appears to be a slight ripple of a trend among courts to take a stricter look at the evidence being presented by the RIAA in its crusade against digital downloads, based primarily on the evidriaa2ence of user names and IP addresses assembled by their expert consultants, MediaSentry. 

In the RIAA’s case against Jeff Dangler, filed in the U. S. District Court for the Western District of New York in Rochester, Dangler failed to file a response to the Complaint, and the Clerk entered the default against him.  Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Plaintiff can then apply to the judge for a judgment based on the default.  In addition, Fed.R.Civ.P 55(b)(2) gives the judge the option to conduct hearings and hear evidence in order to determine if the damages requested are justified.  This gives the judge the opportunity to evaluate the merits of the underlying claim and, if he finds it to be deficient, deny a judgment on the default.

On October 23, 2007, U.S. District Judge David G. Larimer denied a 55(b)(2) request by the RIAA for a default judgment of $6,420 in Atlantic v. Dangler.   Judge Larimer specifically ruled that there were “significant issues of fact” in the record “as to the identification of the defendant from his alleged ‘online media distribution system’ username” heavyjeffinc@KaZaA.  The court points out that there is no evidence presented that established a time period of the alleged distribution and/or infringement nor are there details sufficient to determine whether, in fact, the defendant is the user so identified. 

Because of these deficiencies, Judge Larimer determined that he would hold a hearing to allow the Plaintiffs to establish additional evidence that a copyright violation was committed by the defendant.  You can read the full text of the judge’s order here.

Previously, in August 2007, a similar 55(b)(2) request was denied by Judge Rudi Brewster in Interscope v. Rodriguez in the U.S. District Court for the Southern District of California.  In that case, Judge Brewster held that “Plaintiffs . . . must present at least some facts to show the plausibility of the allegations of copyright infringement against on th[is specific] defendant,” citing the recent U.S. Supreme Court decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) that more than a mere recitation of the elements of a claim are necessary to find relief.   Basing his decision on facts similar in nature to Dangler, Brewster concluded that the RIAA’s complaint failed to state a claim upon which relief could be granted.

These decisions arise in districts where the judges are, generally speaking, more technically saavy than some other districts where these types of issues do not arise as often.  In a somewhat related case, the Ninth Circuit, the appeals court that has jurisdiction over the California district courts, one bankruptcy court has already established stricter standards of proof for establishing the veracity of computer records.  For more information, see the informative article entitled Admitting Computer Record Evidence after In Re Vinhnee:  A Stricter Standard for the Future?, by Cooper Offenbecher.  In short, this article discusses the interplay between Rules 901 and 803(6) of the Federal Rules of Evidence and their application to digital business records.  Essentially, without getting into the details, there is a hearsay exception for business records allowing their admission as evidence in a trial if they are maintained in the regular course of business and are relied upon by the business.   It is these sorts of dialogues that must inform the judges as they scrutinize the evidence presented by the RIAA in support of infringement claims, whether they be in the course of a default judgment or in the course of a trial.

 

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Perhaps Porter Wagoner should be remembered as the original “Rhinestone Cowboy” because of his penchant for sparkling two-piece rhinestone often adorned with wagon wheels and other cowboy themes — at one point he owned over 60 suits. 

The longtime country music legend died at 8:25 p.m. CDT in a Nashville hospice Sunday night at the age of 80 from complications resulting from lung cancer.

Born in the Ozark Mountains of MisPorterDollysouri, Wagoner was a regular on the radio show “Ozark Jubilee.”  He signed his first record deal with RCA Records in 1955.  Two years later, he joined the Grand Old Opry, where he was a perennial favorite.  In 1960, he appeared on “The Porter Wagoner Show,” one of the first syndicated shows to be produced in Nashville, which had a 21-year run.  He was elected to the Country Music Hall of Fame in 2002.

Not only was Wagoner a consummate performer, but he also wrote many great classic country songs, one of the most memorable of which was Green, Green Grass of Home

Wagoner is also credited with giving Dolly Parton her first big break.  He hired the then-fledgling young artist in 1967 to be his duet partner.  That relationship produced a string of hits, but finally ended in a lawsuit that was settled in 1980 for an undisclosed amount.

Wagoner had recently signed a new record deal and produced his last and final album, Wagonmaster, with Marty Stuart.  It was released in June to critical acclaim.

The loss of this great legend is felt throughout the Row today, but there is perhaps a new constellation in the sky, the Rhinestone Cowboy.

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Earlier this week, Tom Baldrica, vice mcbee president of marketing at Sony BMG, announced that Heather McBee has been promoted to vice president of digital business.  McBee, who has been with the label for 14 years, was formerly senior director of that department.

Baldrica said in a prepared statement:

“I’m so proud of this promotion.  Heather has demonstrated constant growth and leadership skills in building her new media band-of-one into a full-fledged digital business department.

Originally from Clarksburg, West Virginia, McBee interned with BNA Records while attending the music program at Belmont University and was employed as a sales assistant upon her graduation in 1993.  Through various mergers and acquisitions among the various labels, she ended up with Sony BMG.  In 1997 she was picked to head up a newly formed research department which eventually evolved into the Digital Business and New Media department.  She was appointed director of that department in 2003.

A part of Leadership Music’s 2007 Digital Summit, McBee is quoted as saying

I had the fortitude to stick it out when everybody was saying “no.”

McBee credits label group chairman, Joe Galante for allowing her flexibility to prove the viability of her ideas about the future of the industry:

He asks that things be quantified. He gave me freedom to experiment…as long as I tempered my excitement and made it fit our goals and what we were doing.

Among other things, McBee was influential in moving Sony BMG into the cellular ringtone business.

 

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Propelled primarily by the sales of 2.5 million copies of the new Harry Potter book, Amazon’s profits reachamazonoct242007 ed the stratosphere in the 3rd fiscal quarter of 2007.  The company announced its third-quarter earnings in an online conference call on Tuesday, announcing a profit of $80 million, three times the $19 million it earned in the third quarter of 2006.  Amazon reported sales of $3.26 billion, up 41% from $2.31 billion in the quarter last year.  The company expects its overall 2007 net profits to be up by 33-36%, or somewhere north of 14 billion dollars.  A replay of the webcast announcement can be heard on Amazon.

As you recall, my earlier interest in the announcement stemmed from the company’s September release of the public beta of its DRM-Free music download store.  While generally overshadowed by the Harry Potter sales, Amazon’s Chief Executive Office, Jeff Bezos, did comment on the digital downloads, saying in the conference call that the company was happy with early results from the store.

"We are getting terrific feedback from customers," he said,  Everybody loves the DRM-free format. Now the onus is on us to continue to convince music labels that this is a good way to sell their music."

Little more can be gained from the announcement with regard to the actual sales of MP3s.  Hopefully more data will be released in the 4th Quarter announcement.  The company intends to expand its digital offerings later this fall by introducing an electronic book reading device and offering downloadable e-books.

According to one research firm, Hitwise, Amazon is the leading benefactor of the web’s double-digit increase in web commerce retail sales, garnering 11.5% of the increase in traffic, followed by Wal-Mart, which received 5.4%.

Amazon, a Fortune 500 company based in Seattle, Washington began operations in July 1995.

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The Nashville Chamber Orchestra’s next installment of its Acoustic Cafe series is next Friday, November 2nd at 8 p.m. in the Grace Chapel, located in Lieper’s Fork, Tennessee.  The event will feature resident musician, Darrell Scott, and the Acoustic All-stars, which, together with the NCO, consists of Dan Dugmore, Stuart Duncan, Viktor Krauss, Kenny Malone, and Bryan Sutton. 

NCO was founded in 1990 by Music Director Paul Gambill.  It is recognized as one of America’s premiere chamber orchestras. It’s trademark Music Without Boundaries has led to critical acclaim as well as numerous recordings for Warner Brothers and other labels,  It’s educational program produced a CD entitled Kid Pan Alley, featuring songs written by noted songwriters with grade school classes around Nashville.  This project won the NCO a Grammy nomination as well as a Gold Award from the Parent’s Choice Foundation and the National Parents Publications Association.

Tickets for the show are on sale now, $25 for General Admission. Call the NCO at 615-322-1226 ext 201 or go online at www.nco.org for more information.

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360 Agency Early in October, Joey Lee, former CEO at Buddy Lee Attractions , left that agency to form 360 Artist Agency, a full-service talent agency.  This ends a very long tenure for the namesake’s son at the helm of the famous Nashville agency. 

Miranda Lambert Mr. Lee took several of his clients with him to the the new agency, including Lee Ann Womack, Miranda Lambert and Heartland, but 360’s final roster has not been published.  In addition to these three artists, Lee was the responsible agent at Buddy Lee for Bo Bice, Mark Chesnutt, Jared Nieman, Rhett Akins, and Thomas Martinez.   Tony Conway remains as president of Buddy Lee Attractions.   You can check out his current  MySpace for more information.

Lee can be reached at 903 18th Ave. S., Nashville, Tennessee 37212, (615) 360-0911.  Email: jlee@360artistagency.com.

 

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RIAA On August 16, 2007, Doe No. 28 in the RIAA’s action captioned Virgin Records America, Inc. et al. v. Does 1-33 filed a motion to squash the subpoena issued to the University of Tennessee on the grounds that, one, it was unreasonable on its face and, two, it violates his rights under the Family Educational Rights and Privacy Act ("FERPA").  The memorandum in support of this motion can be read Pike & Fisher’s website, Internet Law & Regulation.  This was a case of first impression, i.e., this is the first time a court has issued a ruling based on this type of facts.

The Subpoena is Unreasonable on its Face

Does No. 28’s primary argument in support of the proposition that the subpoena is unreasonable on its face was that plaintiffs could identify the name of the alleged infringer of the copyrighted sound recordings by being provided with the name and current campus address of Doe No. 28 and, therefore, does not need his permanent address, telephone numbers, e-mail address, and MAC Address, all of which would subject Doe No. 28 and his parents to unreasonable phone calls and mail. 

Plaintiffs countered that this information was necessary in order to uniquely identify Doe No. 28 to the exclusion of other defendants.

The court based its decision in this regard on Rule 45 of the Federal Rules of Civil Procedure, which state that a subpoena may be modified if it poses an "undue burden" on the defendant.  The Court held that providing plaintiffs with the requested information was not unduly burdensome since college students are transient by nature and move frequently during their tenure at college, thus making it difficult for plaintiffs to locate Doe No. 28 if only a name and campus address is provided.

The Subpoena violates the Family Educational Rights & Privacy Act

In examining this issue, the Court looked at both FERPA and at the University of Tennessee’s FERPA policy, which is posted online here.   The Court found the following:

FERPA broadly defines “educational records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution.”  United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002) (citing 20 U.S.C. § 1232g(a)(4)(A)).  Directory information is defined in the statute as “the student’s name, address, telephone listing, date and place of birth…” 20 U.S.C. § 1232g(a)(5)(A).  According to the University’s FERPA policy,  directory information is “information not generally considered  harmful or an invasion of privacy if disclosed.  The University of Tennessee considers the following information to be ‘Directory Information’: Name, semester and permanent address, e-mail address, telephone listing, date and place of birth.”  Office of the University Registrar, What You Should Know About FERPA.  Furthermore, the University’s policy states that it is “not allowed to share  information (other than ‘Directory Information’) without a student’s written consent” and that a student may limit release of directory information by submitting a request for directory exclusion to the University’s registrar.

After summarizing its analysis of FERPA and UT’s policy, the Court surmised that "most of the information [sought by the subpoena] falls within the category of Directory Information under FERPA," with the exception of the MAC address, which identifies the device used by Doe No. 28 to connect to the Internet, and therefore is not protect by FERPA.  With regard to the MAC address, the Court found that it was neither and "educational" record nor "personally identifiable information," and therefore was not protected by the act.

One note of interest in the Court’s order was the revelation that Doe No. 28 had failed to argue that he had issued a "limiting request" as allowed in the University of Tennessee’s FERPA policy.  The Court also made a particular note that the University’s policy did not mention MAC addresses.  This seems to hint that the Court may have issued a slightly different opinion if these factors had been present, leading to the conclusion that students may want to write letters to their respective schools specifically requesting that no "directory information" be provided to third parties and asking that their schools not release MAC addresses as part of directory information and/or include such information in their FERPA policies.

The Court’s full opinion is available online at the Knoxville News Sentinel.

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Last week, the Country Music Association announced that the next President of its Board of Directors would be Randy Goodman, president of Lyric Street Records.  Goodman, a native Nashvillian, received his bachelor of science in Political Science and Economics from David Lipscomb University.  He also attended Belmont University’s Music Business College. 

20020912_RGoodman_200x246 After graduation, Goodman spent 18 months working as a road manager.  In 1980 he was hired by Tandy Rice’s Top Billing as the agency’s publicist.  In 1981, he joined RCA Records as a publicist and spent five years living in Manhattan and Stamford, CT, while working for RCA in New York City. 

He was hired by Joe Galante, who became Goodman’s mentor. Goodman quickly ascended through the company, working with such acts as Alabama, The Judds, Waylon Jennings, KT Oslin, Restless Heart, Clint Black, Martina McBride, and Kenny Chesney.

Goodman returned to Nashville in 1995 as General Manager of RCA Label Group.  In 1997, Goodman left RCA and launched Lyric Street Records, a Disney company.  The company is now celebrating its 10th anniversary with current artist roster Rascal Flatts, SHeDAISY, Bucky Covington, Josh Gracin, Trent Tomlinson, Sarah Buxton, and Marcel.

“There’s never been a time in my professional experience in Country Music that I wasn’t aware of CMA or didn’t understand its importance — I approach this role with a great deal of humility and a great sense of honor," Goodman said.

Goodman’s term will begin on November 8, the day after the famed CMA Awards Show.  Other well-known members of the CMA Board of Directors are Bob DiPiero, Bruce Allen, Pat Higdon, Mike Dungan and Ed Hardy.  A complete list of the directors, past and present, can be read here.

Goodman and his wife Jennifer live in Nashville with their two children, Ross, 13, and Rachel, 10.

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Back in 1999, my law clerk, J. Eric Crupi and I considered the topic of personal jurisdiction as applied to the Internet. In the resulting Law on the Row article, entitled “Lines in the Virtual Sand.” In the original article, Eric concluded that “the boundaries of personal jurisdiction in cyberspace have not been concretely defined, but rather represent unsettled lines drawn in the ‘virtual’ sand. . . .” In the intervening years, I would have to say that the lines in the virtual sand have been blown away by the winds of U.S. Court decisions, particularly after considering the three-year long case against Hew Griffiths from Australia.

The original article describe the process of personal jurisdiction as follows:

The traditional determination of whether a court has personal jurisdiction over a particular defendant involves a two-pronged analysis. The first prong of the analysis inquires into whether the state in which the lawsuit was filed (i.e. the “forum state”) has a “long-arm statute” permitting the assertion of personal jurisdiction. A long-arm statute is simply a legislative act that allows the courts of a state to assert jurisdiction over persons and corporations that, although not residents of that state, have voluntarily conducted some type of activity in that state. The second prong of the analysis, however, is more involved and inquires into whether the forum state’s assertion of personal jurisdiction complies with Constitutional due process standards. Due process requires that a non-resident defendant must have certain “minimum contacts” with the forum state such that maintaining the suit does not offend traditional notions of fair play and substantial justice. Essentially, this prong is satisfied if the defendant performs some act in the forum state through which it purposefully takes advantage of the benefits of doing business in that state and can thus reasonably anticipate being haled into that state’s courts.

It is the “minimum contacts” section of the long arm analysis that has received the most attention in the U.S. Department of Justice’s extradition of Australian Hew Raymond Griffiths. In one of the first ever extraditions for an intellectual property offense, Griffiths, 44, a British national living in Bateau Bay, Australia – a man who arguably had absolutely no physical contact with the United States – was extradited to the United States in February 2007 to face criminal charges in U.S. District Court in Alexandria, Va. On April 20, 2007, he pleaded guilty to one count of conspiracy to commit criminal copyright infringement and one count of criminal copyright infringement before U.S. District Court Judge Claude M. Hilton. He was sentenced to 51 months in prison and given credit for the three years he spent in Australian facilities awaiting extradition. He will serve out the remaining 15 months imprisonment in U.S. facilities.

Griffiths’ conviction was the latest action arising from the joint U.S. Customs/Department of Justice investigation known as Operation Buccaneer, the largest international online copyright piracy investigation ever conducted by federal law enforcement. To date, Operation Buccaneer has resulted in more than 30 felony convictions in the United States and 11 convictions of foreign nationals overseas.

In an article for the Australian Law Journal, NSW, Chief Judge in Equity, Peter Young summarized that “[Our] people are being extradited to the U.S. to face criminal charges when they have never been to the U.S. and the alleged act occurred wholly outside the US.” He concluded that while International copyright violations are a great and valid problem that must be remedied, “there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person’s behaviour in Australia and the foreign country can exercise influence over Australia.”

The DOJ Assistant Attorney General Alice S. Fisher of the Criminal Division stated the Department’s counter position, that “the Justice Department is committed to protecting intellectual property rights, and will pursue those who commit such crimes beyond the borders of the United States where necessary.” U.S. Attorney Chuck Rosenberg for the Eastern District of Virginia echoed her sentiment when he stated that “Whether committed with a gun or a keyboard — theft is theft. And, for those inclined to steal intellectual property [in the United States], or from halfway around the world, they are on notice that we can and will reach them.”

So what did Griffiths do to raise the ire of the DOJ? Griffiths, known by the screen nickname “Bandido,” was a longtime leader of an organized criminal group known as DrinkOrDie, which had a reputation as one of the oldest and most security-conscious piracy groups on the Internet. DrinkOrDie, an international organization founded in Russia in 1993 and known as the warez scene, was an underground Internet piracy community that specialized in cracking software codes and distributing the cracked versions over the Internet. Griffiths had boasted in interviews that even though he ran all of DrinkOrDie’s day-to-day operations and controlled access to more than 20 of the top warez servers worldwide, he would never be caught. Some of DOD’s most prominent victims were Microsoft, Adobe, Autodesk, Symantec and Novell, but they also affect smaller companies whose livelihood depended on the sales revenue generated by one or two products. Once cracked, these software versions could be copied, used and distributed without limitation. Members stockpiled the illegal software on huge Internet computer storage sites that were filled with tens of thousands of individual software, game, movie and music titles alleged to be worth over 50 millions dollars. The group used encryption and an array of other sophisticated technological security measures to hide their activities from law enforcement. Griffiths was certainly no farm boy and was well aware that his activities were criminal, even though many articles on the Internet about his activities point out that he allegedly made no profit from the pirated software.

Griffiths’ extradition was very controversial in Australia. The matter of U.S.A. v Griffiths has been cited as an example of how bilateral arrangements can lead to undesirable effects such as a loss of sovereignty and the introduction of draconian measures. On the other hand, increased enforcement internationally through heavy criminal sanctions is seen as an effective way of protecting legitimate distribution networks.

A common mistake made in many of the Internet discussions about the Griffiths case is that the extradition occurred pursuant to the Australia-United States Free Trade Agreement (“AUSFTA”). Griffiths’ indictment, however, occurred before amendments were enacted to harmonise the Australian Copyright Act with U.S. copyright laws, so AUSFTA had nothing to do with the extradition. There were multiple factors that motivated extradition, not the least of which was that the DOJ alleged conspiracy, claiming that most of the overt acts were based in the United States and that many DrinkorDie members were located in the U.S. This gives credence to the argument that, as the leader of DOD, Griffiths was subject to its jurisdiction. This analysis is no different than exercising jurisdiction over a criminal enterprise whose activities result in murder rather than theft – the analysis has nothing to do with the severity of the crime. That said, it is not wise to underestimate the impact that the lobbyist for the powerful technology industry may have had on the government’s interest in this case, nor the effect of the close relationship between Australia and the United States, both of which made extradition more likely.

The bottom line in all of this is that the traditional geographical boundaries which once severely restricted the reach of the long arm of the law are no longer an impediment. If a person’s criminal activities rise to a significant enough level as to garner the attention of a organization such as the DOJ, that person is going to find him or herself in unfamiliar territory being charged with violation of crimes in that territory. The lines in the virtual sand have disappeared.

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