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Frequent postings from the FMC staff about the issues at the intersection of music, law, technology and policy.

Did Labels Ask Apple to Remove The Headphone Jack?

by Harrison Speck, Policy Fellow

On Wednesday, September 7, Apple is poised to host a special event announcing the launch of the iPhone 7, widely rumored to lack an analog headphone jack. Since these events are always accompanied by frenzied speculation, let’s make a bet: Would you wager Apple’s headphone jack is removed to reenact an already failed DRM scheme or capitalize on exclusivity and market domination in a multi-billion dollar accessory category?

With the rumors of Apple removing the analog headphone jack from the next iPhone came a deluge of articles about the impending invasion of DRM (a blanket term for various types of digital rights management). We’re told that this move must be happening at the behest of greedy record labels, eager to inconvenience users for the sake of their battle against piracy, forcing people to use DRM-protected digital audio streams.  But let’s ask some critical questions.  While it is a technical possibility that an all-digital audio feed could include DRM, who would implement it and why? 

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Submitted by kevin on September 6, 2016 - 10:30am

It's Time for a Copyright Small Claims Court

When legal battles about copyright infringement make the news, they tend to concern big stars. big hits, and big dollar amounts, from Robin Thicke vs. Marvin Gaye’s estate, to Led Zeppelin’s successful defense of their authorship of”Stairway to Heaven.” 

But what about the rest of us? It’s a simple truth that, in the United States, filing a lawsuit for copyright infringement is expensive. Even just sending an initial letter can cost thousands of dollars and a case with a quick settlement can still cost over $10,000.

Those charges rise quickly when a case takes years to wind through the courts. When photographer Daniel Morel won a $1.2 judgment after a 5-year legal battle against AFP and Getty Images, his law firm had racked up some $2.5 million in legal costsHowever, even though the jury had found AFP and Getty had willfully violated his copyright, the court refused to grant him attorneys fees. This left the law firm that worked with Morel with little hope of collecting on the more than 3,800 hours of work they had put into the case.

This is bad news for both plaintiffs, who often can’t afford to file a lawsuit at all, as well as defendants, who are regularly targeted for hefty damages to justify the expenses.  For many musicians and composers, this all means that legal recourse, even in clear cases of copyright infringement, may be out of reach.

However, a new bill submitted by Representative Hakeem Jeffries (D-NY) hopes to at least ease some of those costs. Dubbed the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, it seeks to create a small claims court for copyright disputes.

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What Does Madonna's Court Victory Mean For Sampling?

After a recent court victory, Madonna is likely to be thanking her lucky stars.  On June 2nd, the U.S. Ninth Circuit Court of Appeals ruled 2-1 in favor of the dance-pop diva and producer Shep Pettibone, who had been sued by VMG Salsoul LLC over her alleged use of a .23-second snippet of the Salsoul Orchestra song Love Break in her 1990 hit Vogue. The court ruled that the use (purported to be a single horn stab) was de minimis, meaning such a small use as to be trivial and not a copyright infringement.

The Ninth Circuit ruling is at odds with a 2005 ruling from the Sixth Circuit, Bridgeport Music Inc.. v. Dimension Films. In that case, the court looked at whether N.W.A., in two of their songs, infringed the copyright of a Funkadelic song by sampling a two-second guitar riff. In that case, the Appeals Court, reversing the lower court, ruled that de minimis did not apply in cases of sampling of a sound recording (while leaving the door open to the possibility of fair use claims.)

This split between the two circuits could even ultimately set the issue on the path to the Supreme Court, though it could be a long time before such a hearing takes place.  Still, the case once again raises the issue of whether very short samples are not only not copyright infringements, but are too trivial to weigh.  

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Submitted by jonathan on July 19, 2016 - 11:57pm

SoundCloud Go's Launch Leaves Unanswered Questions

by Nicole Daley, Policy Intern

Last week, SoundCloud launched their new paid subscription service—yes, another on-demand streaming site. SoundCloud Go, as they’ve named it, promises many things such as a larger catalogue and maintaining the user-friendly interface they’re popular for, but when it comes to the details of artist compensation, it leaves much to the imagination. In other words they’ve decided not to disclose much information or have not yet figured everything out yet.  read more

Submitted by kevin on April 11, 2016 - 1:55pm

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