Category: Digital Public Performance Right

Kim Dotcom Criminal Copyright

Feds Release Details on Megaupload’s Kim Dotcom Criminal Copyright Case

A Deluge of Emails Shows Intent to Violate Criminal Copyright Law

In a test of the reach of American copyright law, the U.S. Department of Justice (U.S. DOJ) has released a 200 page summary of its criminal case against Kim Dotcom. The Feds claim that its documents prove Dotcom’s intent to violate criminal copyright law with his shuttered website, Megaupload. They also claim his criminal enterprise caused the American entertainment industry $500 million in lost profits. Now it’s up to New Zealand officias to decide whether the U.S. can extradite Dotcom to face these charges.

Who is Kim Dotcom?

Kim Dotcom Criminal Copyright
Dotcom showing off his wise investment strategy.

The eponymous Dotcom, born Kim Schmitz, was a notorious hacker in his native Germany. Police eventually arrested him in 1994 for trafficking in stolen phone cards, but he evaded serious punishment for what a judge called “youthful foolishness” (despite being 20 at the time of his arrest). He eventually moved on to Thailand to dodge charges of insider trading in the early 2000’s. Thailand authorities arrested him anyways and deported him back to Germany. Dotcom again managed to avoid a prison term and left for Hong Kong in 2003.

It was around this time that Dotcom set up Megaupload (among some more questionable investment activity). He generously called his file hosting and sharing website a “provider of cloud storage services” or cyberlocker. More dubious commentators would call it a internet piracy mecca. At one point, Megaupload was the 13th most popular site on the internet and claimed 4% of the world’s traffic.

The Feds’ Case for Criminal Copyright

In 2012, the U.S. DOJ indicted Dotcom in U.S. federal court on criminal charges ranging from Conspiracy to Commit Copyright Infringement to Racketeering. By that time Dotcom had become a resident of New Zealand. Briefly imprisoned there, Dotcom is now out on bail and hiding away in his New Zealand mansion.

Emails and Skype messages released by the U.S. DOJ appear to show Dotcom had less than honest intentions for Megaupload.

“I have a feeling that Kim tolerates a certain amount of copyright violation.”

But digging deeper into the U.S. DOJ’s summary, there doesn’t appear to be much in the way of direct admission by Dotcom of an intent to violate criminal copyright law. Rather, there is a lot of innuendo and circumstantial evidence. Dotcom forwarded emails to other corporate officers about piracy and Megaupload, complained of lost revenue when employees complied with DMCA requests, and was included in emails by other Megauplaod officials who made more direct admissions.

The U.S. DOJ’s other problem with this international caper, though, is Dotcom’s residence in New Zealand. They’ll have to wait until at least 2014 for judicial authorities there to decide whether the U.S. can extradite Dotcom.

Dotcom’s Defense to Criminal Copyright Charges

Dotcom appeared to have relied upon a distorted understanding of U.S. copyright law to justify his actions. Dotcom, in the U.S. DOJ’s release, repeatedly referred to DMCA takedown requests. This part of copyright law requires copyright holders to inform ISP’s of copyright infringing material before the ISP needs to remove that material. Of course, the infringing content providor must have had a good faith belief their actions were legal in the first place. Or that they were at least ignorant of its legality.

An extension of this defense theory is that Megaupload is simply a “cloud” storage platform. Prosecutors cannot hold Dotcom responsible if people use the site for online piracy. Not suprisingly, a host of witnesses, including the MPAA, RIAA, and BSA, are ready to go to court to dispute Dotcom’s story of benevolent intentions.

This story warrants further attention to see how far the reach of U.S. copyright law can extend.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the shareholder of Good Attorneys at Law, P.A. He graduated from the DePaul University College of Law in 1997 and obtained his L.L.M. in Taxation from the University of Florida.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com

Image by sam_churchill

Special Series: The International Art Community’s Annual Winter Bash, Art Basel in Miami

An (Unofficial) Art Basel Visitor Guide

After relocating to Miami this past summer, I’m looking forward to exploring a one of a kind art exhibition in Miami and the sandy white shores of South Beach: Art Basel. Actually, one of a kind is a bit of misnomer. Organizers also host annual Art Basel shindigs in its namesake city, Basel, (a European city on the border between Switzerland, France, and Germany) and Hong Kong at different times of the year. Art Basel/Miami Beach 2013 is the 12th edition of this art gala and has grown up into a sprawling maze of eye candy for connoisseurs of the visual arts and the curious.

What is Art Basel?

Art Basel traces its beginnings to three visionary art gallery owners in 1970. They created an event for artists and galleries alike to exhibit contemporary and avant-garde pieces from around the world. Throughout the years, the Art Basel production has grown from 90 involved galleries, 30 publishers of art from 10 countries, and 16,300 visitors to its present size across three cities. 50,000 visitors alone came to Art Basel/Miami Beach alone last year.

A truly international event, Art Basel 2013 will showcase contemporary art from across the globe. Art galleries from North America, Latin America, Europe, Asia, and Africa are coming to town and have historical works from masters of Modern art and newly minted pieces by emerging stars in tow. Painting, sculptures, drawings, installations, photographs, films, and edited works of great quality are on the menu. Live performances and music are planned as well to create a fully immersive experience.

Things to See and Do At Art Basel

Art Basel Miami at Convention Center
Soon to be chock full ‘o contemporary art

The invitation only events begin December 4, 2013, and opens to the public from Thursday, December 5 through Sunday, December 8. Doors open, figuratively speaking, at noon each day and close at 8pm (6pm on Sunday).

The main event will take place at the Miami Beach Convention Center (MBCC) and will be divided into eight different areas:

  • Galleries – Art works from undiscovered artists through museum quality pieces.
  • Nova – Individual galleries showcase new works from the past 3 years from 1-3, hand selected artists from around the world.
  • Positions – A single artist presents one major project.
  • Edition – Special presentations of editioned works, prints, and multiples (think Andy Warhol) by renowned artists
  • Kabinett – Curated exhibitions of art that have their own space to showcase specific themes.
  • Public – Outdoor sculptures, interventions, and live performances. No ticket required!
  • Film – Films by and about artists.
  • Magazines – Art publications from around the world.

Public artworks are located at nearby Collins Park and nearby beaches. Video works will be presented inside the MBCC and also in the outdoor setting of SoundScape Park.

Art Basel will also organize three different series for visitors to go beyond just viewing artworks.

  • Conversations – Morning discussions by prominent members of the international art world.
  • Salon – Short presentations that include artist talks, panels, lectures, and performances with the artists, academics, curators, collectors, architects, art lawyers, critics, and others.
  • Video Archive – Videos of archived “Conversations” from Art Basels in years past.

Art Basel will be offering more specific details, including a show guide and floor plan when they become available. You can that information here.

Art Basel Creates a Synergy in Miami

The Beach doesn’t get to claim the entire event. There will be “satellite” art fairs going on before, during, and after Art Basel citywide. A large part of it will be take place across the causeways in Midtown and the Wynwood Arts Districts of Miami. Three large structures in Midtown will be home to the works of contemporary artists from all over the world, further cementing this area’s place as the go-to arts center of the city.

Here are some of the satellite art fairs that have got my attention:

  • New Material Art Fair – This 1st edition fair features experimental works that push the boundaries of traditional contemporary art. Eva Hotel, December 5-8.
  • Brazil Art Fair – A showcase of art works from Brazilian galleries. Midtown, December 4-8.
  • Interactive Art Fair – A fair that focuses on immersing the onlooker with the artworks. 1035 N Miami Ave, December 3-8.

 

Just getting to all the shows could become a full time job!

Certainly these events show Miami as a hub for artistic expression, visual and otherwise. AB/MB also brings light that there is more to the art scene than just creating. It is about the experience.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

The Right to Digital Public Performance

The Six Rights of Copyright – Part VI: The Right to Digital Public Performance

 

The Bundle of Rights That Make Up Copyright

 

The digital public performance right is the sixth and final part in our series on what makes a Copyright. The prior five rights reviewed are linked below. To refresh, the six parts of copyright are:

We’re individually exploring each of these rights to get behind the opaque curtain of copyright. An understanding of each right and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows the copyright holder only to exercise these rights.

VI: The Right to Digital Public Performance of Sound Recordings

 

The right to digital public performance of sound recordings is an extension of the traditional right to public performance. Copyright holders have the exclusive right to publicly perform their sound recordings–a particular recording of a musical composition (e.g. master recording, masters)–via digital transmission (e.g. internet, satellite radio). The older right to public performance specifically excludes sound recordings. This right is limited because it does not cover analog transmissions such as traditional radio or television.

Why the Right to Digital Public Performance?

 

Digital Public Performance - Webcasting
Digital Public Performance: Webcasting

Congress created this copyright protection (DPRSRA legislation) because of advances in technology. High quality digital copies of sound recordings became easy and cheap to make in the 1990’s. Suddenly, people could readily profit from this practice and artists had little legal recourse. The digital public performance right creates a partial solution for this gap in copyright law. Groups that want to legally play sound recordings via digital transmission (think Spotify and Pandora) now must pay for that right. It was perfectly legal to not pay prior to this legal update. An organization called Sound Exchange currently administers the licensing of sound recordings.

There is a three-tier system that sets the licensing fee for sound recordings. The first tier doesn’t require certain broadcasters to pay any licensing fees. The second tier requires broadcasters to pay a “statutory” licensing fee set by the Copyright Board. The third tier requires broadcasters to negotiate the licensing fee directly with the copyright holders. Much of the highly publicized dispute over fees for sound recordings is about this second tier payment structure. Artists, broadcasters, and other interested groups vehemently disagree about the correct licensing fee amount and how to calculate that fee.

Limitations on the Right to Public Display

 

The most important limitation on copyright protection for sound recordings is that it only covers digital transmission. It’s business as usual for analog broadcasters in radio and television. The details of the digital public performance right also has many more nuances. It’s a fair complaint by sound recording copyright holders that they’re treated unfairly when compared to musical composition copyright holders. It’s also safe to say that no one (artists, broadcasters, and copyright holders) is actually satisfied with this copyright protection.

Ari Good, JD LLM, is a Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

Image by Doug Symington