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Re: Sebastian Bachs Finest Moment
Performers shall enjoy the exclusive right of authorizing, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances
That right there is a loophole I could fly a space shuttle through. When exactly does something become a "broadcast performance"? TV debut? Radio debut? When a singer opens his mouth onstage?
In 2004, there were two more anti-bootlegging cases decided, one criminal case and one civil case. In United States v. Martignon, 346 F.Supp.2d 413 (S.D.N.Y. 2004), the owner of Midnight Records, comprising a store in Manhattan, a catalogue service, and an Internet site, was arrested and subsequently indicted by a federal grand jury for violating 18 U.S.C.A. § 2391A, for selling unauthorized recordings of live performances through his business.
Martignon moved to dismiss the indictment. His lawyers had the advantage of having read the Eleventh Circuit’s Moghadam opinion. In addition to asserting that Section 2319A violated the “Writings” requirement for lack of “fixation”, they followed the Eleventh Circuit’s advice and also asserted a “limited Times” defence.
Judge Baer, of the Southern District of New York, distinguished Moghadam as being a narrow holding because the statute was not challenged on “perpetual protection” grounds. “Not only was this issue not present in Moghadam, but the Moghadam Court all but stated, on several occasions, that had the defendant challenged the statute’s violation of the “Limited Times” provision in the Copyright Clause, the Court may well have come to a different decision about the statute’s validity.”The judge held that statute violated the “limited Times” provision by “granting seemingly perpetual protection to live musical performances.” The judge also addressed the “fixation” issue that was avoided by the Eleventh Circuit and held, “by virtue of the fact that the statute regulates unfixed live performances, the anti-bootlegging statute is not within the purview of Congress’ Copyright Clause Power.”
The Court then addressed whether the legislation prohibiting the recording and selling of “bootleg” recordings could have been enacted under the Commerce powers. In addition to noting that everything in the legislative history, as well as the placement of the corresponding civil statute in the Copyright Act supported the proposition that Congress thought that it was acting under its Copyright powers and not its Commerce authority.In contrast to the fixation problem, the perpetual copyright-like protection was found to be so “fundamentally inconsistent” with Copyright Clause’s “limited Times” restriction that the legislation was held to be impermissible under the Commerce Clause, as well. Defendant’s motion to dismiss the indictment was granted.
Wow. A U.S. judge agreed with me and threw it out of court. I'm shocked. 
In KISS Catalog v. Passport International Productions, Inc., 350 F.Supp.2d 823 (C.D.Cal. 2004), the dispute involved films of a KISS concert made almost thirty years ago. On July 10, 1976, KISS performed at Roosevelt Stadium in New Jersey as part of their “Spirit of ‘76” concert tour. The concert promoter for the Roosevelt Stadium was Metropolitan Talent, Inc. (“Metropolitan”).
Metropolitan filmed the Roosevelt Stadium performance so that they could project images of the band on screen while the band was performing. After the concert, Metropolitan retained its live recording of the show – for the next thirty years.
At some time in 2003, Metropolitan entered into a “Stock Footage License Agreement” with Passport that purportedly gave Passport rights to distribute copies of the filmed 1976 Roosevelt Stadium concert to the public. Passport released a DVD of the concert as “KISS: The Lost Concert” and began selling copies in late 2003. In November 2003, KISS filed suit against Passport asserting a variety of trademark and state law claims. The district court issued a preliminary injunction against Passport, which was subsequently reversed by the Ninth Circuit.
In August 2004, KISS filed an amended complaint in order to assert an anti-bootlegging claim under Section 1101(a)(3). In October 2004, they filed a second amended complaint to include claims for copyright infringement, as well. On November 8, 2004, Passport filed motions to dismiss both the copyright and the bootlegging claims. The court held that Plaintiffs had sufficiently set forth a claim for copyright infringement and had registered the work. The Defendants’ motion regarding copyright dismissal was denied.
The defendants first argued that the anti-bootlegging claims must fail because they are inconsistent with the copyright infringement claims. Because Rule 8(e)(2) of the Federal Rules of Civil Procedure permits a plaintiff to plead alternative or inconsistent claims, the anti-bootlegging claim, in light of the copyright infringement claim, was perfectly acceptable.
Defendants then argued that Section 1101, which took effect in late 1994, was prospective in nature, and could not be applied to prevent the sale of a film that was made 20 years prior to its enactment. The court rejected this argument, as well, noting that each subsection can be applied independently. Section 1101(a)(1) applies to making an unauthorized recording; Section 1101(a)(2) applies to making unauthorized transmissions of a live performance; and Section 1101(a)(3) applies to distributing, selling, or offering to sell any unauthorized recording.
The court rejected the argument that Section 1101(a)(3) inherently includes Section 1101(a)(1), so that only the distribution of unauthorized recordings made after the effective date could trigger liability. The court noted that Congress easily could have included language tying the two together, but it did not do so. The statute was interpreted to continuing the potential and separate violations.
Therefore, the unauthorized sale after the effective date of a recorded concert that was made prior to the effective date would violate Section 1101(a)(3). To further illustrate, the court pointed out that if one were to make an unauthorized recording after the effective date, and then distribute the recording, both Section 1101(a)(1) and Section 1101(a)(3) would have been violated.
Great example. Kiss wins, but look at everything that had to be twisted around just so they could win.
These examples are bootlegging for profit. Not even taking into consideration fan use of fan made bootlegs. Zero revenue is earned, and in the case of youtube, myspace,etc. it is the artist and the site that generate revenue, not the fans!
If Baz ever wants to sue anybody, he needs to sue himself and youtube. Even when removing fan clips on the format, he has made chump change from it due to the ads on the videos. He probably doesn't even realize that a few dollars coming in are from people clicking on his tripe before he has it deleted.
I love how these irrelevant artists think we're all stupid just because they are.
Not everyone loves youtube or sees it as free promotion. Baz is certainly not alone on that front. Howard Stern hates it when people put up clips of his show on youtube and has threatened to take legal action. Saturday Night Live, HBO, etc. pull clips down all the time. It's their god given right. You don't have to like it or agree with it, but they're not necessarily doing anything wrong.
Apples and oranges. You're talking about official television programs. Shitty cell phone bootlegs aren't the same thing.
Re: Sebastian Bachs Finest Moment
I know I'm always arguing about this with you guys..but i'm just yet to be convinced this new model for the industry is going to work long term. It's expensive to make records. At some point people have to get paid to do it, and I don't think touring and merch is the only solution.
It might not work long term, but the old way is dead, dead, DEAD! It ain't coming back, it's not gonna get revived, it is fuckin' cooked baby.
I think the future will reveal another way to do it, and make it profitable. I personally think it'll involve getting rid of physical formats, and simply selling albums as flash drives, which load an MP3 player directly with disc art, band photos, liner notes, and maybe even behind the scenes & live videos, in addition to the album itself, and would probably be sold in a plastic box with art, no different than your typical flash drive.
Then something will replace that.
But it'll have to start with NEW albums, and move forward that way.
The back catalogs are already compromised. They've been ripped into electronic formats, and scattered across the ears of billions throughout the world. We've already got it.
No way will they take or stop the back catalog from being in circulation. It's gonna have to focus with MP3's for players and the new car stereos, and putting licensing in those tracks to block them from being able to be ripped.
But then again, you'll always have programs like Audacity, and things like stereo line-in jack cords, that will allow me to just rip the audio directly from the MP3 player, in that theory.
Either way, the technology doesn't exist. So for now, this is how it is. You either get used to it, Baz, or you get left behind, but the time for change is NOW. As James put it - "relic"... he's another relic kicking and screaming against the car seat, and that's not gonna change anything.
Just like the RIAA lost the battle YEARS ago, and only recently have they finally accepted that... like we ALL didn't see that coming a mile away. It's a mouse trying to crush an elephant.
Re: Sebastian Bachs Finest Moment
I know I'm always arguing about this with you guys..but i'm just yet to be convinced this new model for the industry is going to work long term. It's expensive to make records. At some point people have to get paid to do it, and I don't think touring and merch is the only solution.
I think the change that's been a long time coming, and is getting really close to here already, is that it won't be expensive to make records anymore for very long.
You can already get pretty good sounding recordings from home studios with fairly inexpensive setups. As technologies advance, that's only going to sound better and get cheaper.
Re: Sebastian Bachs Finest Moment
I think the future will reveal another way to do it, and make it profitable. I personally think it'll involve getting rid of physical formats, and simply selling albums as flash drives, which load an MP3 player directly with disc art, band photos, liner notes, and maybe even behind the scenes & live videos, in addition to the album itself, and would probably be sold in a plastic box with art, no different than your typical flash drive.
This is already on the verge of happening.
The 'big four' major record companies have joined forces to launch a new digital album format that they hope will take on Apple.
Sony, Warner, Universal and EMI are putting the finishing touches to an album download that will include a digitised version of the record sleeve, including artwork, lyrics and videos.
Dubbed CDX and launced in November, the new format is designed to boost interest in a digital album sales, according to The Times. While online music has flourished sales sales of single tracks, sales of whole records are still suffering. While nine out of ten single sales are digital, the figure is reversed with the same ratio of album sales being physical.
The alliance apparently approached Apple, the giant behind iTunes last year with the plan but were rebuffed. Apple are now apparently developing their own album format, codenamed Cocktail which they plan to launch in the next two months.
A label insider told the paper: "Apple told us at first but were not interested, but now they have decided to do their own, in case ours catches on. Ours will be a file that you click on, it opens and it would have a totally brand-new look, with a launch page and all the different options. When you click on it you're not just going to get the ten tracks, you're going to get artwork, the video and mobile products."
A spokesperson for the Entertainment Retailers Association said there was a demand for digital music to embrace the old qualities of a physical album. "It is the great conundrum of our age: what would an album look like online? At the moment a download in no sense replicates that satisfying quality of a physical album.
"Think about the importance of the gift market for albums. Online it's stripped down to bare music, and there's a lot more to an album than that."
Re: Sebastian Bachs Finest Moment
The irony of that is, years ago, like late 90's, me and my buds, neck deep in the Napster gen, were talking about how the record companies would survive.
One of the suggestions thrown around bullshitting was developing albums as 'computer software'. No different than a game, that's an interactive experience with the album itself with animations, behind the scenes stuff... basically that of a special edition DVD, and allows you to 'burn songs' to CD-R (it was 1999/2000 or so).
Looks like that's the idea from above.
And we were just a bunch of stupid, no talent, high school stoners.
Re: Sebastian Bachs Finest Moment
Performers shall enjoy the exclusive right of authorizing, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances
That right there is a loophole I could fly a space shuttle through. When exactly does something become a "broadcast performance"? TV debut? Radio debut? When a singer opens his mouth onstage?
When broadcasted with Artists permission across any form of media. Al these legal terms are clearly defined.
Broadcast:to transmit programs or signals intended to be received by the public through radio, television, or similar means.
In 2004, there were two more anti-bootlegging cases decided, one criminal case and one civil case. In United States v. Martignon, 346 F.Supp.2d 413 (S.D.N.Y. 2004), the owner of Midnight Records, comprising a store in Manhattan, a catalogue service, and an Internet site, was arrested and subsequently indicted by a federal grand jury for violating 18 U.S.C.A. § 2391A, for selling unauthorized recordings of live performances through his business.
Martignon moved to dismiss the indictment. His lawyers had the advantage of having read the Eleventh Circuit’s Moghadam opinion. In addition to asserting that Section 2319A violated the “Writings” requirement for lack of “fixation”, they followed the Eleventh Circuit’s advice and also asserted a “limited Times” defence.
Judge Baer, of the Southern District of New York, distinguished Moghadam as being a narrow holding because the statute was not challenged on “perpetual protection” grounds. “Not only was this issue not present in Moghadam, but the Moghadam Court all but stated, on several occasions, that had the defendant challenged the statute’s violation of the “Limited Times” provision in the Copyright Clause, the Court may well have come to a different decision about the statute’s validity.”The judge held that statute violated the “limited Times” provision by “granting seemingly perpetual protection to live musical performances.” The judge also addressed the “fixation” issue that was avoided by the Eleventh Circuit and held, “by virtue of the fact that the statute regulates unfixed live performances, the anti-bootlegging statute is not within the purview of Congress’ Copyright Clause Power.”
The Court then addressed whether the legislation prohibiting the recording and selling of “bootleg” recordings could have been enacted under the Commerce powers. In addition to noting that everything in the legislative history, as well as the placement of the corresponding civil statute in the Copyright Act supported the proposition that Congress thought that it was acting under its Copyright powers and not its Commerce authority.In contrast to the fixation problem, the perpetual copyright-like protection was found to be so “fundamentally inconsistent” with Copyright Clause’s “limited Times” restriction that the legislation was held to be impermissible under the Commerce Clause, as well. Defendant’s motion to dismiss the indictment was granted.
Wow. A U.S. judge agreed with me and threw it out of court. I'm shocked.
Are you serious? Your quoting THIS case to Back Up your argument??? First off this Applies ONLY to the District of New York. One single district in one Huge nation. Anywhere else in in the U.S, and the rest of the planet, Bootlegging is considered Illegal
Just to clarify this for you, here is the exact section of the Copyright Act which outlaws bootlegging. (Everywhere in America BUT the District of New York)
http://caselaw.lp.findlaw.com/casecode/ … _1101.html
Seems fairly cut and dry to me.
Its really Great that ONE U.S. judge agreed with your stance on this issue. Meanwhile Every other Judge in you Country agrees with Me. 
Here's Phil Collins. (He is an actual Artist that lives in the rest of the world where it is still Illegal) He won his bootlegging case too.
http://www.independent.co.uk/news/uk/ph … 12122.html
Here you have a Bootlegger who was CONVICTED of selling Led Zep Boots. Jimmy notoriously despises bootleggers.
http://www.theregister.co.uk/2007/08/01 … onviction/
As you can see from this more recent link. The Sinatra Estate believe they have a good case against bootlegging
http://www.lasvegassun.com/news/2001/ma … ars-tapes/
Bruse Springsteen Case
http://www.telegraph.co.uk/news/newstop … music.html
When touring round Japan Noel Gallagher is well known for walking into record shops picking out all the Oasis Bootlegs and walking out the Door without paying. His reason for this ,he states, is that they are his anyway. Never once has a single shop owner brought charges against him because even the Bootleggers know they are in the wrong. Of course he himself actually supports Bootlegging and does this just to Entertain himself.
Re: Sebastian Bachs Finest Moment
Are you serious? Your quoting THIS case to Back Up your argument???
Absolutely. A precedent has been set. Not sure how these things work on your side of the pond, but this most definitely isn't meaningless even if you want to portray that to be the case.
If you don't think a judge in the United States overruling this law means something(regardless of the state its in), you should either go take a refresher course on US law or just watch all that gay marriage crap thats going on here. ONE judge can go against the will of the people(including other courts), but you think they cant with something as muddied as copyright law and their merits with unauthorized audio recordings? They can, they have, and they will continue to do so.
If it was as cut and dried as you like to claim, NO websites could stream anything due to potential legal consequences. You should be THANKING this judge(and others, not digging for more examples. I know there are more, but the cases above prove my point), not laughing about it.
Its really Great that ONE U.S. judge agreed with your stance on this issue.
Actually it is, and if you're in this country and happen to get arrested for something regarding such an issue, you'll be begging your attorney to bring up this and similar cases.
As I've stated, the lines are blurred when it comes to artists rights concerning bootlegs, and the lines are even more blurred when it comes to fan made crap that fans make no money off of, and in the case of myspace and youtube, the artists make the money themselves.
Courts all over the globe cant even agree who owns the rights to such iconic audio/video as the MLK speech, or its use in broadcasts. Even with various rulings, decades later it is STILL open to interpretation.
What about the Zapruder film?
With all this murkiness, sixty second Baz clips no one but 10 people care about are cut and dried, signed, sealed, and delivered by every court in the solar system?
Well fuck me sideways....
Re: Sebastian Bachs Finest Moment
As I've stated, the lines are blurred when it comes to artists rights concerning bootlegs, and the lines are even more blurred when it comes to fan made crap that fans make no money off of, and in the case of myspace and youtube, the artists make the money themselves.
Courts all over the globe cant even agree who owns the rights to such iconic audio/video as the MLK speech, or its use in broadcasts. Even with various rulings, decades later it is STILL open to interpretation.
True that. There was a little section in that law I posted saying that broadcast meant when something was shown to people by way of television "or similar means"
Personally I think its good that these laws are left open to interpretation. It means as the times change, and circumstances change the law can be re-interpreted in a way that serves the greater good.
If you don't think a judge in the United States overruling this law means something(regardless of the state its in), you should either go take a refresher course on US law or just watch all that gay marriage crap thats going on here. ONE judge can go against the will of the people(including other courts), but you think they cant with something as muddied as copyright law and their merits with unauthorized audio recordings? They can, they have, and they will continue to do so.
Did a little reading and yeah it does work quite different over here the burden of proof is reversed for one. (I think)
Personally Im pro youtube /file sharing. My main problem was with the laws that make such things illegal and allow an artist like Bach/Prince to act the way they do (their interactions with fans on youtube /anti-downloading stance).
Having read over some of these laws at this point, Im a little less pessimistic about the whole situation.
You would think that to stop Artists acting like the aforementioned perpetrators that the old laws would have to be re-written. But in fact, these laws have been wide open. It is all up to how they are interpreted. We are now only really entering the age of digital music. We are at the threshold. We have been interpreting these laws in a way that supported the old system. That system is now crumbling. These laws will be re-interpreted to support the new system, and those still stuck in their ways following the old system will just have to keep up or fall by the wayside as the law will not protect their out-moded ways much longer.
The example you give of the judge in the District of NY, is a good representation of this shift into the new digital age and how the law can in fact support that (because of how open it actually is)...
Let me just scratch down that for the Record. Bachs way of dealing with his fans (and Princes imo) is ridiculous. The legal system that allowed them to act like this seems to be changing. Though its gonna take more cases for this to become the status quo of course, but were only at the very begining of this new age....
Its kinda exciting really.
Hell Im in a god mood today 
