Pandora, Vivendi, Schlumberger: Intellectual Property
By Victoria Slind-Flor - Sep 19, 2013 7:13 AM ET
Pandora Media Inc. (P), the biggest Internet radio service, won a court order to stop a group representing songwriters and music publishers from limiting the number of songs that it licenses to Pandora.
U.S. District Judge Denise Cote in Manhattan said in a ruling Sept. 17 that Pandora’s five-year license beginning Jan. 1, 2011, won’t be affected by withdrawals of new-media licensing rights from the repertory of the American Society of Composers, Authors and Publishers. Cote granted Pandora’s request for summary judgment, citing an earlier consent decree between Ascap and the U.S.
The issue in the case arose from decisions by large music publishers including Sony Corp. (6758)’s EMI Music Publishing Ltd. and Sony/ATV Music Publishing LLC to withdraw new-media rights from Ascap and negotiate license fees directly with Web radio services. Pandora said that while its license renewal with Ascap was pending, the organization shouldn’t allow the withdrawals, which would reduce the number of songs covered by Ascap’s licenses.
“We welcome the court’s decision,” Chris Harrison, an assistant general counsel of Pandora, said in a statement. “We hope this will put an end to the attempt by certain Ascap-member publishers to unfairly and selectively withhold their catalogs from Pandora.”
Pandora filed a lawsuit in November asking the court to set “reasonable” fees for a licensing agreement with Ascap through 2015 that would cover all songs represented by the 470,000-member group. Pandora said the current fees made sustained profitability impossible.
Ascap and Pandora reached an “experimental” fee agreement in 2005 that lasted until 2010. The parties then were unable to agree on licensing rates after more than a year of talks, Pandora said in its complaint.
Under the terms of the federal consent decree that resulted from a 1941 lawsuit against Ascap, the U.S. District Court in New York has jurisdiction over rate-setting if the parties can’t come to terms. Cote will preside over a trial to set the rates in December.
The case is In re Petition of Pandora Media Inc., 1:12-cv-08035, U.S. District Court, Southern District of New York (Manhattan).
Universal Music Must Face Lawsuit Over Bob Marley Remixes
Vivendi SA (VIV)’s Universal Music Group Inc. must face claims that it tried to block a music production company from distributing its remixes of early Bob Marley songs, a federal appeals court in California ruled.
Universal won dismissal of the claims brought by Rock River Communications Inc. after arguing to a lower court that the distributor had to prove it was legally authorized to use the music on its album. Universal couldn’t have interfered if the album violated copyright laws, the company said. Universal is only half right, a three-judge appeals panel ruled yesterday.
The case involves licensing rights for early musical recordings by Bob Marley and the Wailers. Rock River sued in 2008 accusing Universal of strong-arming its plans to release an album called “Roots, Rock, Remixed” that included 12 versions of popular Marley songs. Universal claimed to have purchased exclusive rights to the music in 2003 from a company called JAD Records, according to court documents.
Rock River’s obtained its license to sample 16 musical recordings by the group from San Juan Music Group Ltd., which had licensed music since 1980 through an agreement with former Marley producer Lee Perry, according to court documents.
“When the music was initially recorded in Jamaica in the 1960s, record keeping was not a primary concern,” the appeals court said in its ruling. “The absence of legal documentation has led to confusion in the marketplace as to which entities own licensing rights for these recordings.”
UMG’s transmission of cease-and-desist letters in 2007, an action that prompted Rock River’s suit, could be viewed by a reasonable jury as the company’s attempt to enforce its claim to exclusive licensing rights through a “threat of litigation” rather than actual litigation, the appeals court said in its ruling. The court noted that despite San Juan’s long history “openly licensing” Marley recordings, neither Universal or JAD ever sued that company for infringement.
The case is Rock River Communications Inc. Universal Music Group Inc., 11-57168, U.S. Court of Appeals for the Ninth Circuit (Pasadena).
Dish’s Ad-Skipping Feature Survives ABC’s Court Shutdown Bid
Dish Network Corp. (DISH)’s ad-skipping recording feature survived a court bid by Walt Disney Co. (DIS)’s ABC television unit to shut it down almost a year after a Los Angeles judge rejected a similar effort by another broadcaster.
ABC’s request for a preliminary injunction against the ad-skipping service was denied yesterday by U.S. District Judge Laura Taylor Swain, who placed her opinion under seal because it contained confidential business information, according to a filing in federal court in Manhattan.
The dispute over Dish’s ad-skipping technology is playing out in federal courts on both coasts. Dish sued ABC, CBS Corp. (CBS) and Comcast Corp. (CMCSA)’s NBC in New York in May 2012, seeking a judgment that its AutoHop feature, which allows viewers to skip ads only in broadcast shows, doesn’t violate network copyrights or contracts. The same day, News Corp.’s Fox Broadcasting, CBS and NBC sued Dish in Los Angeles for copyright infringement and breach of contract.
In November, U.S. District Judge Dolly Gee in Los Angeles rejected Fox’s bid for an injunction similar to the one sought in New York. An appeals court upheld Gee’s ruling in July.
Dish, based in Englewood, Colorado, introduced its new digital-video recorder, the Hopper, in March 2012. Its PrimeTime Anytime feature can record all the major networks’ primetime shows and store them for eight days after their initial broadcast. AutoHop, introduced in May 2012, allows viewers, with the touch of a button, to skip all ads automatically, without having to manually fast-forward through them.
Dish’s response relied in part on a 1984 U.S. Supreme Court ruling that consumers have the right to make copies of TV shows with video recorders for later viewing. It also relied on a 2008 decision by the U.S. Court of Appeals in New York that a company isn’t liable for infringement if its customers initiate the recording process.
The New York case is In re AutoHop Litigation, 12-04155, U.S. District Court, Southern District of New York (Manhattan).
Schlumberger Sues PGS Over Underwater Seismic Survey Patents
Schlumberger Ltd. (SLB)’s WesternGeco unit sued a Norwegian oilfield services company for patent infringement.
Petroleum Geo-Services ASA (PGS) is accused of infringing four patents related to marine seismic data acquisition.
In dispute are patents 6,691,038, issued in February 2004; 7,080,607, issued in July 2006; 7,162,967, issued in January 2007; and 7,293,520, issued in November 2007.
WesternGeco said that Petroleum Geo-Services will be an exhibitor at of the Society of Exploration Geophysicists International Exposition and Annual Meeting this month to promote products and services that infringe the disputed patents.
Technology the Norwegian company supplies has already been found to infringe the WesternGeco patents in a case against Houston’s Ion Geophysical Corp., according to the complaint filed Sept. 16 in Houston federal court. As a result, Petroleum Geo-Services should have been aware of the infringement, WesternGeco claims.
In the case against Ion, a jury awarded Houston-based WesternGeco $105.9 million in damages and royalties for infringement of those patents. The jury also found that the infringement was deliberate.
The Schlumberger unit asked the court for awards of money damages, and, claiming the Norwegian company’s infringement is deliberate, seeks triple damages as punishment.
Additionally, WesternGeco requested a court order barring future infringement of the patents at issue and awards of attorney fees and litigation costs.
Petroleum Geo-Services said in a statement that only two of the ships in its survey fleet are equipped with the devices WesternGeco claims infringe the patents, and neither have been used in a seismic survey conducted in U.S. waters. The Norwegian company said the claims are without merit and “will at most have a limited financial impact for the company.”
The case is WesternGeco LLC v. Petroleum Geo-Services Inc., 4:13-cv-02725, U.S. District Court, Southern District of Texas (Houston).
The case against ION is WesternGeco LLC v. ION Geophysical Corp. (IO), 4:09-cv-01827, U.S. District Court, Southern District of Texas (Houston).
South Africa Shoe Companies Dispute Sole Design as Trademark
Two shoe companies have gone to court in South Africa in a trademark dispute involving shoe soles, according to South Africa’s Business Day Live.
Unlike the recent battles involving the red-soled shoes made by Christian Louboutin Sarl, the court case in South Africa is focused on a wavy design on shoe soles made by Futura Footwear, which manufactures Bata’s Toughees for the South African market, according to Business Day Live.
Novita Shoes is accused of infringing the sole design, which customers who have low literacy levels may use as a major brand identifier, the South African news website Business Day Live reported.
The case is set to be heard in 2014, according to Business Day Live.
Cigar Maker Claims Distributor Infringes ‘Recluse’ Trademark
Iconic Leaf Cigars LLC, a Florida-based cigar manufacturer, sued a New Hampshire retailer for trademark infringement.
The company claims Vintage Cigar Distributors of New England Inc. sold and distributed cigars that infringe Iconic Leaf’s “Recluse” trademark and trade dress, according to the complaint filed Sept. 17 in federal court in Miami.
Iconic Leaf said it registered “Recluse” as a trademark in January, and identifies its product with packaging bearing the image of a spider. The spider design is also a registered trademark, the company said in its filings.
It objects to trademark applications submitted by Vintage and says the packaging, which used a spider design, infringes its trade dress. The alleged infringement has continued despite Iconic Leaf’s having sent multiple cease-and-desist notices to the New Hampshire company, according to the complaint.
Iconic Leaf claims it has been harmed by Vintage’s actions, and that the public is confused by the similarity in the name and packaging.
It asked the court to order Vintage to quit using the spider name and allegedly infringing packaging, and asked for an award of the New Hampshire company’s profits attributable to the infringement. Additionally, Iconic Leaf asked for awards of money damages, attorney fees and litigation costs.
Vintage didn’t respond immediately to an e-mailed request for comment.
The case is Iconic Leaf Cigars LLC v. Vintage Cigar Distributors of New England Inc., 1:13-cv-23345-UU, U.S. District Court, Southern District of Florida (Miami).
Trade Secrets/Industrial Espionage
Norwegian Agency Says Country Is ‘Tempting’ Goal for Espionage
The Norwegian National Security Agency has issued a warning that computer systems in the country are vulnerable and a “tempting” goal for industrial espionage, the NewsinEnglish.no website reported.
The agency said in a statement that many Norwegians operations are targeted daily by hackers, and too many computer programs aren’t updated to provide adequate protection for sensitive data, according to the news website.
Seminars aimed at improving computer security will be held in eight cities, including Oslo, will be conducted in October by the agency, NewsinEnglish.no reported.
The agency said it hopes the seminars will reach companies, state and municipal operations, academic circles, organizations and citizens with interests in information technology and security, according to NewsinEnglish.no.
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