Sunday, September 20, 2015

Music Business/Law Tips - "Web Infringement"

With the simplicity of posting music and video online, one may think it is easier to prove copyright infringement, but according to recent court rulings this is not necessarily the case. Under basic Copyright Law, in order to prove copyright infringement, one must show: (1) that the claimant truly owns the copyright (i.e., song or video), and (2) that the infringer "copied" the copyright without permission. The second prong has two elements: (i) the copy must be substantially similar to the original, and (ii) the infringer had to have access to the copyright being infringed. The "access" element is very strictly interpreted when it comes to posting a song on the Internet for example. Courts have held that availability of the copyright on the Internet by itself is insufficient to prove access. In other words, just because something is online does not mean that the defendant saw it there and copied it. The plaintiff will have to show that there is "widespread dissemination" of the copyright being infringed. This can be demonstrated by lots of downloads and website traffic. The more traffic, the greater the likelihood that the defendant actually saw or heard the infringed work. For example, in a recent case involving Angry Birds video game infringement, since the Angry Birds app has been downloaded 1 billion times and has 40 million active users, that was enough to show widespread dissemination. Clearly most content online is not that popular, so be wary about bringing a copyright action until it is easy to prove. Ben McLane Esq

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