<ul><li> Victims' Relief Aid Fund Proposed In Wake Of R.I. Nightclub Deaths</li> <li> Calif. Sen. Backs Proposed New Internet Piracy Bill</li> <li> South By Southwest Conference Panels Offer CLE Credi



Breaking News

Clear Channel Yanks Howard Stern Off Six Channels

By Bill Holland

NEW YORK--Clear Channel Communications announced Feb. 24 that it had pulled radio personality Howard Stern off the air for violating new indecency guidelines.

A transcript of the Feb. 24 Stern program was not available, but the show apparently contained bits that could be considered misogynistic and racist.

"Clear Channel drew a line in the sand today with regard to protecting our listeners from indecent content, and Howard Stern's show blew right through it," Clear Channel Radio
president/CEO John Hogan said in a statement.

The suspension came the same day that Hogan had issued new guidelines to radio stations warning that noncompliance would result in termination.

A spokesman for Viacom's Infinity Broadcasting, the company that employs Stern, declined to comment, but a source close to the company says there are not any plans to
suspend or fire the jock.

The action came one day after the company fired Todd "Bubba the Love Sponge" Clem, an on-air personality whose show was fined a proposed $755,000 by the Federal Communications Commission for a similar violation.

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Victims' Relief Aid Fund Proposed In Wake Of R.I. Nightclub Deaths

By Ray Waddell

NASHVILLE--A new legislative proposal in Rhode Island, inspired in large part by the Station Club tragedy a year ago, would offer immediate financial aid to employees injured or killed at businesses that do not have workers' compensation coverage.

House Bill 7491, put forth at the request of the Rhode Island Trial Lawyers Assn., would create a state fund set up to pay medical bills and death benefits to the uninsured employees or their famlies while the state prosecutes their employer.

The proposal comes a year after the Station nightclub fire in West Warwick, R.I., killed 100 people and injured 200 others during a concert by the band Great White last Feb. 20. The Station's owners had never purchased workers' comp coverage.

Brothers Michael and Jeffrey Derderian, owners of the Station, already face a penalty of more than $1 million for failure to carry workers' compensation insurance.

The Occupational Health & Safety Administration (OSHA) also fined the brothers $85,200 for seven violations. Both fines have been appealed, according to Jeffrey Pine, attorney for the Derderians (Billboard Magazine, Feb. 21).

The new bill is sponsored by Reps. Robert Jacquard, D-Cranston, Joseph Moran III, D-Central Falls, and Frank Montanaro, D-Cranston.

Steve Minicucci, past president of the Rhode Island Trial Lawyers Assn. and chairman of a "plaintiff steering committee" tells ELW the bill is about restoring rights to injured workers, while giving employers incentive to provide a safe work environment.

Meanwhile, Minicucci says the various civil suits, which some have estimated to total more than $1 billion, are still subject to jurisdictional confusion as to whether they should be tried in state or federal courts.

A federal judge in December put a stay into effect on all civil suits, Minicucci says, stalling proceedings. If the cases do proceed to the federal courts, possibly even the Supreme Court, more problems could await.

Still, Minicucci and his team think there may be civil culpability well beyond those indicted criminally, specifically the club owners and former Great White tour manager Dan Biechele.

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Calif. Sen. Backs Proposed New Internet Piracy Bill

By Melinda Newman

LOS ANGELES--In an effort to stem Internet piracy, Sen. Kevin Murray, D-Los Angeles, has introduced new legislation in the California Senate that requires recorded audio or visual works distributed on the Internet to disclose the "true name and address" of the manufacturer.

Murray's bill updates a law currently on California books that does not include the Internet. The goal is that consumers who do not see a name and address on offerings will proceed with caution before purchasing such items, since it is believed that legitimate manufacturers will include the information, while pirates will not.

Violation of the statute would carry a fine of up to $2,500 and/or one year imprisonment.

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South By Southwest Conference Panels Offer CLE Credits

By Chris Morris

The South By Southwest Music Conference (SXSW) will offer continuing legal education (CLE) panels in Austin, Texas, March 19-20.

The CLE courses-which count toward attorneys' required annual accredited legal education-have been assembled by Nels Jacobson, an intellectual property lawyer with sponsoring firm Sedgwick Detert Moran and Arnold in San Francisco. The CLE program is accredited by the State Bar of Texas.

Certificates of attendance for attorneys requesting CLE credit for Texas and other states will be available at sign-in before and during each day's session.

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Washington Report

Little Resolution From Talks Between RIAA, P2P Consortium

By Samantha Chang

NEW YORK--Very little was resolved after last Thursday's meeting between the Recording Industry Assn. of America and P2P United, a consortium of P2P applications.

U.S. Senators Ron Wyden, D-Ore., and John Ensign, R-Nev., co-chairmen of the Forum on Technology & Innovation, had called the talks in an apparent attempt to avoid government intervention.

The groups met in Washington to reach a middle ground in the continuing battle over online music downloading.

P2P United Executive Director Adam Eisgrau advocated creating a legitimate marketplace where P2P applications could play a keyrole.

Meanwhile, the RIAA was less willing to bargain, according to press reports, favoring filtering technologies that many P2P firms claim are useless on decentralized networks.

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McCain Urges FCC 'Proactivity' On Indecency Issues

By Kathleen Anderson

NEW YORK (The Hollywood Reporter)--Republican Sen. John McCain urged the Federal Communications Commission to be "far more proactive" in addressing indecency issues and warned against media industry consolidation at a recent press event.

McCain spoke last Monday in New York at the Museum of Television & Radio on issues facing the media industry.

McCain, chairman of the Senate Commerce Committee, said, "It's very dangerous for Congress to make judgments on morality."

The FCC--not Congress--should enforce laws and regulations already set in place, he stressed. "The FCC, a very large bureaucracy with some very large salaries, should perhaps be doing more," McCain said.

McCain also said community standards must be put in place in order to avoid distasteful events such as the recent Janet Jackson stunt at the SuperBowl in the future. While such standards are difficult to implement, McCain underscored that it is the FCC, and not Congress, that has to be "far more proactive" in establishing guidelines.

CONSOLIDATION SCARE
McCain also warned that if the United States isn't vigilant, continued industry consolidation could lead to a situation like in Italy, where the government owns 95% of the media, or Russia, where the press is forced to praise political leaders.

"I'm not saying this will happen in the U.S., but we should be concerned on the future of consolidation," said McCain.

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International Section

Australian Labels, Kazaa Await Calif. Ruling

By This story was written by Christie Eliezer in Sydney and Tom Ferguson in London

SYDNEY--Australian record labels and Sydney-based SharmanNetworks--owner of the Kazaa P2P file-sharing service--are anxiously waiting to the decisions of three appeal court judges some 7,500 miles away.

Australian Federal Court Judge Murray Wilcox in Sydney has told the two sides in a potential civil case over copyright infringement that he will reserve judgment over whether proceedings should go ahead until the Court of Appeals in Pasadena, Calif., rules on arguments from music publishers and film studios who want to reverse a 2003 Los Angeles federal court ruling on file-sharing liability.

The U.S. judgment being appealed in Pasadena had cleared Internet companies Grokster and StreamCast of liability for users who swap files using their software. Sharman was a co-defendant in the initial lawsuits.

DUBIOUS ALIBI
Wilcox has expressed reservations over the content of initial submissions by Australian labels which resulted in his granting their Music Industry Piracy Investigation (MIPI) unit a search order to raid various Sharman/Kazaa-associated premises on Feb. 6.

"I don't have a feeling that I was told lies or misled," he explained during a Feb. 20 hearing, "but I do have a feeling there was a lot more to the story that I wasn't told."

MIPI is funded by the Australian affiliates of Universal Music, Sony Music, EMI Music, Warner Music, and BMG, plus leading independent Festival Mushroom Records.

RAID IN SYDNEY
MIPI GM Michael Speck says he believes the body has enough evidence for Justice Wilcox to agree to initiate copyright infringement proceedings against Kazaa. "Their time has come," he says.

Lawyers representing Sharman have been fighting the threatened lawsuit since the Feb. 6 raids took place. They occurred simultaneously on 12 premises in three Australian states, and involved some 60 lawyers and MIPI investigators.

Among premises searched were Sharman Networks' offices in Sydney, and the homes in that city of CEO Nikki Hemming and IT director Philip Morle.

Also raided was the Sydney office of Los Angeles-based digital rights management group Brilliant Digital Entertainment. The latter is a partner with Stockholm, Sweden-based P2P company Joltid in joint venture Altnet, which has corporate headquarters in Woodland Hills, Calif. Altnet makes legally licensed music available via Kazaa. The Sydney home of Altnet managing director Kevin Bermeister was also raided.

MIPI seized files from several Internet service providers and from the premises of the University of Queensland, the University of New South Wales and Monash University during the raids. None of those bodies face any legal action, but MIPI contend their computer systems contained information linking Kazaa to copyright infringement.

Sharman's lawyers had asked the Federal Court in Sydney Feb. 10 to rule that evidence collected in the raids be ruled inadmissible, on the grounds that the Court had no authority to grant MIPI the search order. Justice Wilcox then postponed the hearing until Feb. 20, to allow time for the evidence to be assessed.

At the Feb. 20 hearing, Justice Wilcox told MIPI and Sharman to return at an as-yet unspecified date in March to present him with more detailed submissions on their relative positions. He added that he would not decide whether there is a case to proceed with until the result of the U.S. appeal is known.

During the hearing, the judge said that, when granting the search order to MIPI, he had acted under an impression given in MIPI's submission that Sharman Networks was a "fly-by-night" operator. He also said he was not told that Sharman was cooperating in the U.S. appeal by providing over 40,000 documents to that court.

Counsel for MIPI, Tony Bannon, argued during the Feb. 20 hearing that that the U.S. appeal had no bearing on any case in Australia, as the copyright laws in both countries are different.

Sharman's attorney, David Casselman, says the seizure of tens of thousands of documents in Sydney during the Feb. 6 raids meant Sharman was delayed in supplying some of those documents to the court in Pasadena. As a result, he says, a ruling in the U.S. case will now not be possible until mid-March.

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Labels, Video Channel Dispute Fee Collection

By Gustavo in Gomez, Colombia, and Leila Cobo in Miami

MIAMI--Labels in Colombia are awaiting a decision from the country's National Office of Author's Rights that will determine how performance rights fees are collected from music video channels in that country.

The pending decision is in response to a dispute between six multinationals that operate in Colombia and TV network Channel 13.

This month, the six labels-Sony, EMI, Universal, Warner, Sum, BMG and local label FM-decided to charge Channel 13 directly for performance rights to their music videos.

Previously, Colombia's Association of Phonographic Producers and Artists (Acinpro), a performance rights society, had collected, in the same way it collects where recorded music is concerned. Now, labels want TV channels like Channel 13 to pay them directly for performance rights.

Because there are no laws in Colombia governing music video rights, the labels and Channel 13 have said they will abide by the decision from the Office of Author's Rights. Until then, Channel 13 is not airing any of the label's videos.

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Beatles' Apple vs. Apple Computer In Trademark Suit

LONDON (Reuters)--Apple Computer and the Beatles' record company Apple Corps went to court last Wednesday over who gets to use the fruity name now that the computer company has entered the music business on the Internet.

The two companies reached a deal in 1991 after a fight over the trademark, signing an agreement that set out who could use the name and logo, and when. But the British record company says the American computer company broke the deal by using the Apple name to market its new iTunes Internet music service.

In a preliminary skirmish last Wednesday, Apple Computer asked the court to rule that the full legal battle should be dealt with by California courts and not courts in England.

The computer company's lawyer said that the 1991 agreement allows Apple Computer to use the name for data transmission services, even if the data included material such as music, which was within the record label's "field of use."

The hearing, which is scheduled to last three days, coincides with news in the United States that rapper Eminem is suing Apple Computer on the grounds it used one of his hit songs in a TV advertisement without his permission.

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Battle Royal(ties) Heats Up Between Boy George, Virgin Records

By Roger Pearson

LONDON--Boy George and the members of his band Culture Club are suing Virgin Records for damages in a row over album royalties.

In a writ issued at London's High Court, the group claims Virgin failed to account properly for royalties due on a compilation album called "Greatest Moments."

The writ says Boy George, whose real name is George O'Dowd, and band members Jon Moss, Michael Craig and Roy Hay, called in accountants Sloane & Co. in summer 2003 to audit Virgin's books and records. They contend that Virgin failed to account properly to them, in breach of contract and fiduciary duty.

According to the writ, Virgin also failed to account properly after including masters in soundtrack and compilation albums in the United States, paying a flat fee basis instead of royalties for each record sold.

INJUNCTION & DAMAGES SOUGHT
The artists are seeking orders forcing Virgin to disclose the correct royalty base price for U.S. soundtrack and compilation orders, and to disclose books and accounts.

They also seek an account of all royalties payable to them, and an order for payment of sums found due, as well as damages, and specific performance of agreements.

The four also accuse Virgin of breaching agreements by failing to account for money it received for broadcast and public performance licensing worldwide. And they say Virgin should have paid them 50% of the money it received from collecting society Phonographic Performance Ltd (PPL), instead of the 37.5% they received.

The foursome are seeking payment of sums due for the last six years. They also claim royalties due from all record sales campaigns worldwide and say they have been paid just half of their entitlement.

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Dream Makers & Deal Breakers

Spin Magazine Spins Wheels As Publishers Exit

By Carla Hay

NEW YORK--Spin magazine is restructuring its management, but a spokeswoman denied rumors that it is going out of business.

The New York-based magazine's acting publisher, Alex Mironovich, and associate publisher, Michael Zivyak, both resigned Monday. Jacob Hill, previously a senior consultant to Budget Living magazine, has come aboard as publisher, a position left vacant since Jonathan Chalon exited in mid-2003. Hill was a co-founder and publisher of Arthur Frommer's Budget Travel magazine.

Spin has suffered a decrease in advertising revenue over the past few years. According to Billboard sister publication Mediaweek, Spin's ad pages fell 14% in 2003 from the previous year. In 2004 to date, Spin has run 132 ad pages, down 8% from 2003.

According to the Audit Bureau of Circulations, as of December 2003, Spin's paid circulation was 560,531. Vibe is No. 2, with 834,984 in paid circulation. Rolling Stone is No. 1, with paid circulation of 1.3 million.

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Viacom Names Moniz Head Of Compliance

By Samantha Chang

NEW YORK--Viacom has named Henry T.A. Moniz vice president of compliance.

Moniz previously was a litigation partner with Bingham McCutchen in Boston and served a stinit as an assistant U.S. attorney in Miami and Boston.

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UMVD Names Kim Sullivan Video Sales VP

By Carla Hay

NEW YORK--Universal Music and Video Distribution/Visual Entertainment in Santa Monica, Calif., has named Kim Sullivan VP of video sales. She previously was VP of sales at Ventura Distribution.

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Commentary

Canadian Solution To Music Industry Woes

By Steve Gordon

Recently, I urged the recording industry to back a statute that would legalize peer-to-peer music file-sharing and at the same time require Internet service providers (ISPs) and electronics businesses to pay into a fund to reimburse the labels and artists for lost sales.

Two recent developments indicate that Canada may be poised to implement such a scheme.

CANADIAN COPYRIGHT ACTION
The 1998 amendment to the Canadian Copyright Act made it legal to make copies of recorded music for private home use. But the amendment was unclear whether this applied to music downloading.

Recently, the Canadian Copyright Board determined that downloading music from P2P file-sharing services such as Kazaa is legal as long as the downloaded file is used as a "personal copy."

The board did not declare uploading to be legal, and so stopped just shy of completely legalizing P2P music trading.

Since Canada already imposes a levy on blank CDs and MP3 players for the benefit of artists, songwriters and record companies, however, this decision goes a long way towards implementing a system that legalizes file sharing and at the same time compensates the labels and artists.

In the United States, a federal court ruled last April that the free music file sharing service Grokster did not violate copyright law on the grounds that Grokster was merely making available software that enabled people to trade music files.

But the court stated that downloading from these services was copyright infringement. The recording industry took advantage of this legal opening by authorizing the RIAA in September to attack the only remaining legal target: ordinary people who download music from free services.

The decision by the Canadian Copyright Board, though, would hamper the labels' ability to sue Canadian citizens.

ISP TARIFF
What else can the record labels do to fight against "free music" and continuing loss of revenues?

They could decide to join with the Society of Composers, Authors and Music Publishers of Canada (SOCAM) and the Canadian Musical Reproduction Rights Agency (CMRRA).

Last week those organizations argued in Canada's Supreme Court that the ISPs should pay a blanket royalty fee to cover the downloading of music over the Internet.

The president of CMRRA, David Basskin, was quoted as saying: "I believe that those who benefit from selling access to music should compensate the creators."

If this initiative is implemented, the Canadian system may garner enough money to fairly compensate the labels and artists as well as the songwriters for lost sales.

iTUNES MODEL
The initial success of the model first implemented by Apple iTunes of offering downloads of single songs for 99 cents has inspired many imitators in the span of a few months.

Several other services have sprung up to offer the same deal or better, and companies as diverse as MTV and Hewlett-Packard (HP) are planning to launch their own music download services soon.

Yet the success of iTunes consists of only a few million downloads of single tracks, and the decline of the record business does not show any signs of abating.

The principal financial impact of iTunes is that it has tremendously helped sales of MP3 players, especially Apple iPods.

A major problem for the labels in competing with the unauthorized music services continues to be the contractual restrictions against downloading in guest artist agreements, sample licenses and the contracts of superstars such as the Beatles and Madonna.

Only a statutory license can cut through these legal knots and free up all recorded music to be distributed and traded under the color of a statute that would protect consumers from legal attacks by the record companies and at the same time compensate the copyright owners and the artists for lost sales.

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Case Analyses

Ongoing 'Name' Battle Between CMA, CCMA Rages On

By Deborah Evans Price

NASHVILLE--The Country Music Assn. and Christian Country Music Assn. continue to battle in U.S. District Court in Nashville over the Christian music organization's use of acronyms.

In the most recent skirmish, the courts ruled that the Christian Country Music Assn. had violated a preliminary injunction issued last October that prohibited the organization from using the acronym CCMA, saying the initials were too similar to that of the CMA and caused confusion.

Most recently, Christian Country Music Assn. CEO Gene Higgins had begun using "CCA" for Christian Country Association, a name he trademarked in 1997, but the judge ruled that that violated the preliminary injunction.

Court documents state "the new logo utilized by the Defendants breaches the Safe Distance Rule. This Court found that the letters CCA not only created a likelihood of confusion with CMA, but was possibly even more confusing."
Higgins says he has tried to comply with the court rulings and didn't think using CCA would incite further action.

"I thought that (CCA) was a good acronym," says Higgins. "I thought we'd call our awards show the CCA Music Awards and it should make everybody happy. We put it on the website, didn't notify the press, just put it out there, and the CMA came back and put a contempt of court on me that I can't use that because it was too much like the CMA again."

TOO SIMILARĀ“
CMA representatives see the new acronym as still being likely to create confusion. "CMA regrets having to take this legal action," says CMA executive director Ed Benson, "and we've continued to suggest to Gene Higgins that he use his organization's full name in order to prevent confusion among consumers and the media between the annual award shows.

The district court had enjoined Higgins from using CCMA or any confusingly similar designation. The Court subsequently held that CCA was "confusingly similar" and held that Higgins was in contempt of the court's original injunction.

The disagreement began 10 years ago. Ed Benson says they began writing letters to Higgins in 1994 asking him to cease using CCMA.

In September 26, 2002, CMA filed its original complaint. On Oct. 24, 2003, the court granted the plaintiff's motion for a preliminary injunction. This all came to a head last fall in the weeks before both organizations held their annual awards shows. CMA's event took place Nov. 5 and the Christian awards were Nov. 6.

Because of the injunction, the Christian organization had to cease using the CCMA logo in materials promoting their convention and awards show, which was broadcast on the Great American Country (GAC) network. When the ruling came down, Higgins said, "We've used that acronym 12 years. It's like someone taking your baby away from you."

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Film Groups Win Another Round In DVD Descrambling Case

By Jill Kipnis

LOS ANGELES--The Sixth Circuit Court of Appeals in California last Friday reversed a 1999 injunction against California resident Andrew Bunner that had prohibited him from posting DVD decryption codes on the Internet.

On Friday, the court ruled that the DVD Copy Control Association, which brought the charges against Bunner, failed to show that content scrambling system decryption codes were trade secrets.

The decision follows two previous court wins by individuals who posted DeCSS codes online. In December, the acquittal of Norwegian youth Jon Johansen was upheld in Norway.

And in Jan. 2003, the U.S. Supreme Court reversed a stay on a California Supreme Court ruling that had barred the entertainment industry from suing Matthew Pavlovich, a Texan who posted DeCSS online, because it fell outside of California's jurisdiction.

The DVD CCA filed a voluntary dismissal of its case against Bunner in January, claiming that that it sought to change its legal strategy in fighting against piracy.

In February, the Morgan Hill, Calif.-based DVD CCA sued software company 321, saying it was focusing its anti-piracy fight against broadly distributed products such as 321's "DVD X Copy" software.

On Feb. 20, 321 was ordered to stop distributing products that featured a "ripper" feature after it was determined that the product violates the Digital Millennium Copyright Act.

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Bertelsmann Unit To Fork Over $3M In Patent Settlement

By Samantha Chang

NEW YORK--CDnow has agreed to pay $3.3 million to settle a patent infringement suit brought by SightSound Technologies.

CDnow conceded the validity of SightSound's patents covering the commercial downloading of music on the Internet.

CDnow, a subsidiary of German media giant Bertelsmann, did not concede any wrongdoing from their prior activities in the music download business, but agreed not to further contest the Lebanon, Pa.-based SightSound's patents.

The settlement was entered Feb. 20 by Judge Donetta W. Ambrose of the U.S. District Court for the Western District of Pennsylvania.

SightSound originally sued the now-defunct N2K in 1998, when N2K, which has since been absorbed by CDNow, began selling paid downloads through an agreement with Liquid Audio.

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Court Denies Injunction Vs. Viacom

By Andrew Wallenstein

LOS ANGELES (The Hollywood Reporter)--A federal judge has denied EchoStar's request for a preliminary injunction against Viacom that would have prevented Viacom from pulling its broadcast and cable signals from EchoStar's Dish Network satellite TV service.

Judge Claudia Wilken of the U.S. District Court in Oakland, Calif., did, however, grant a 10-day extension to a restraining order against Viacom and indicated that EchoStar had grounds to proceed with an antitrust lawsuit.

EchoStar and Viacom have been locked in license-fee negotiations over CBS-owned broadcast TV stations and Viacom cable outlets, including MTV, VH1 and Nickelodeon. Wilken issued a TRO last month that barred Viacom from stopping transmission of its signals to EchoStar.

Elaborating on her decision to deny the injunction, Wilken said EchoStar would not suffer "irreparable" damages. However, she held out the option for EchoStar to collect monetary damages of some quantity after a carriage deal is reached.

EchoStar sued Viacom following the Dec. 31 expiration of its most recent carriage agreements with Viacom.

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