Music

Kanye West vs. The Pirate Bay: Leaning on the Inducement Liability Standard

In February, Kanye West released “The Life of Pablo,” his most recent album, exclusively on Tidal, a music-streaming app owned by rapper Jay-Z.  Allegedly, 48 hours after the album’s release, The Pirate Bay (“TBH”), a website torrent, made the album available for downloads through its peer-to-peer file sharing system.

Kanye hoped that his exclusive release would increase Tidal’s music-streaming downloads and subscriptions; however, it did quite the opposite, resulting in an estimated loss of 10 million dollars in album sales.

Subsequently, Kanye took to Twitter and threatened to sue TPB for copyright infringement.  TPB, in response, created “Kanye Bay,” another proxy download made in Kanye’s name.

The biggest problem in finding TPB liable has to do with the United States Copyright Law’s limitation on copyright infringement. 17 United States Code section 512 provides that a “service provider shall not be liable for monetary relief, for infringement of copyright by reason of intermediate and temporary storage of material on a system or network controlled operated by or for the service provider in a case which the material is made available online by a person other than the service provider.”  We obviously know that TPB is facilitating piracy as committed by their subscribers, as the system allows subscribers to post IP addresses from which downloads of copyright protected materials can be produced.  But the way the law is written, it is difficult to find TPB liable under Copyright Law as the company’s system acts as an intermediary that only creates a pathway to reproduced copies of copyrighted works. But is there another route to finding liability?

A Ninth Circuit decision could work in Kanye’s favor, see Columbia Pictures Industries, Inc. v. Fung, No. 10-55946, 2013 WL 1174151 (9th Cir. Mar. 21, 2013).   Here, the court adopted Grokster’s inducement liability standard in finding Fung liable for copyright infringement (see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005). The Court in Grokster inducement standard is as follows:

 “[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression … is liable for the resulting acts of infringement by third parties.” Id. at 936-37.

The Ninth Circuit Court of Appeals found Fung liable for copyright infringement when he made available motion picture films on his torrent.  In finding Fung liable, the Court discussed how Fung offered his services with the object of promoting subscribers’ use to infringe copyrighted material and how Fung solicited and encouraged users to upload torrents.  Is not TPB doing the same?  What about now that TPB has created “Kanye Bay”?  Is this not solicitation and encouragement? Against Kanye’s favor, he was recently accused of downloading from TBH as he uploaded a screenshot of computer showing alleged misconduct. Unclean hands? See picture of alleged misconduct below.

Cited Sources

http://www.inquisitr.com/2874008/the-pirate-bay-trolls-kanye-west-with-his-very-own-torrent-proxy-kanye-bay/

http://www.forbes.com/sites/insertcoin/2016/02/20/it-would-be-pointless-for-kanye-west-to-sue-the-pirate-bay-after-tidal-disaster/#1e0acfb62b78

https://jenner.com/system/assets/publications/11896/original/platzer_lundy.pdf?1368138175

Music and Law: Jay-Z and Timbaland Beats Copyright Infringement Claims

Osama Ahmed Fahmy claims that Timothy Mosley (better known as ‘Timbaland’), an American music producer and rap artist, did not acquire a license in perpetuity for the four notes of Khosara that was used to compose Jay-Z’s Big Pimpin’.  Khosara was written by late Egyptian composer Baligh Hamdy.  Fahey, who claims to be an heir of Hamdy, asserted that Timbaland’s use of four notes in Khosara infringed upon his copyright because a licensee EMI Arabia could not sub-license this license without his permission.  Fahmy also filed motion for summary judgment against the rappers, which was denied.  Federal Judge Christina Snyder ruled that other genuine issues of material facts existed.

Fahmy’s claim was grounded upon a moral rights law, only recognized in Egypt, but drew an analogous line to sub-licensing rights in America.  A Rule 11 motion would have been appropriate here.  Respondent’s lawyer could have moved for a judgment on the pleadings, given the pleaded inapplicable law.  Theoretically, these procedural rules would have dismantled Fahmy’s claims, undermined his credibility, if not dismissed the claims altogether, given Fahmy based his claim on Egyptian Law.

Allegedly in December 1995, Sout el Phan, an Egyptian recording company, entered into a licensing agreement with EMI Music Arabia (Defendants’ Licensor) granting EMI sole and exclusive right to protect, publish, and or sub-publish the song Khosara.  In 2001, Timbaland allegedly contracted with EMI Arabia to acquire rights to use a Khosara in perpetuity against the rest of the world, excluding Egypt.  Timbaland paid $100,000 (a small house) for consideration.  Both EMI Arabia and Sout el Phan shared in the proceeds from the licensing of these rights.  From these facts, Sout el Phan resembles an undisclosed principal whose existence was not known to Timbaland at the time this contract was formed.  Here, agency law and federal statutes are both at play.

Alternatively, Sout el Phan and EMI Arabia would be liable to Timbaland and other respondents for damages related to a fraudulent contract, should respondents lose.

However, from an objective reading, Sout el Phan had the authority to license and sub-license, given the timeline and details.

As written in groove with current trial dates, the court ruled in favor of Jay-Z, Timbaland, and other respondents, because Plaintiff lacked standing.  This criticism was just seconds late of that ruling.

Ironically enough, Khosara is said to be an Egyptian love ballad that was converted into Jay-Z’s Big Pimpin’, a veneration of all things that are perverse and inconsistent with the law.

Sources: http://www.dailymail.co.uk/news/article-3276020/Even-Jay-Z-forgets-Tidal-s-existence-Rapper-court-copyright-charges-forgets-mention-flopped-music-streaming-business-asked-businesses-were.html

Defs.’ Joint Mem. of Contentions of Fact of Law (Aug. 10, 2015) WL 5968225 (C.D.Cal.) (Trial Filing).

Plaintiff’s Motion for Summary Judgment on Defendant’s License Affirmative Defense: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/PMSJ.pdf

Youtube Video: https://www.youtube.com/watch?v=49CGZgWdBNs and can be heard on iTunes

[UPDATE] Stream The Weeknd's New Album, Beauty Behind The Madness, HERE.

On Tuesday, August 18, 2015, we witnessed greatness--The Weeknd--perform his latest hits "Earned It," "Can't Feel My Face," and some of my favorites from his earlier album "House of Balloons," which was a mixtape once upon time ago. 

 Performing Artist The Weeknd performs at Drai's Nightclub in Las Vegas, August 2015. Here's the flyer promoting the show as an official party for several trade shows that were happening that week. 

Performing Artist The Weeknd performs at Drai's Nightclub in Las Vegas, August 2015. Here's the flyer promoting the show as an official party for several trade shows that were happening that week. 

First, I must say that Drai's nightclub is gorgeous. It has about 12 pools which are located on its rooftop terrace that flows right from its centerstage/dance floor. The club also has an upstairs, a balcony view of the dance floor and bars. I believe it has about 2 or 3 bars. It could be more as that night was a blur.

I swear there were several hundred people in there that night as we were shoulder-to-shoulder, no personal space, but lots of energy and vibes. There were some ups and downs to our night as there is no assigned seating for concerts, and you have to get in where you fit in. 

[Video] "The Hills" by The Weeknd.

FYI, we stood right next to Michael B. Jordan's VIP section, but his boys were so overprotective that they built a fort with their bodies, so that no one could snap pictures of him. Womp, womp!

Video footage from The Weeknd, recorded at Drais Nighclub.

Drai's has a dress code, so I went in a dress and heels. But the heels turned out to be a nightmare since I stood for over 5 hours. Anyone out there know of better heels to withstand that kind of standing time? I'm all ears. 

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Nonetheless, The Weeknd made my night and absolutely was the icing to my Vegas trip. The Weeknd's Beauty Behind the Madness drops Aug 28. 

See More Photos on Drai's website.

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