SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
:

TONY SILVESTER, LESTER CHAMBERS, CARL :

GARDNER, and BILL PINKNEY, Individually and on :

Behalf of All Others Similarly Situated, :

:

Plaintiffs-Appellants :

: Index No. __________

v. :

:

TIME WARNER, INC., UNIVERSAL MUSIC :

GROUP, INC., SONY MUSIC ENTERTAINMENT, :

INC., and BMG ENTERTAINMENT, INC. :

:

Defendants-Appellees :

:




BRIEF FOR PLAINTIFFS-APPELLANTS

WOLF HALDENSTEIN ADLER

FREEMAN & HERZ LLP

Fred T. Isquith (FI 6782)

270 Madison Avenue

New York, New York 10016

(212) 545-4600


FELDMAN & ASSOC.

Lawrence E. Feldman

Jenkintown Plaza, Suite 230

101 Greenwood Avenue

Jenkintown, PA 19046

(215) 885-3302


Attorneys for Appellants and the Class


I. PRELIMINARY STATEMENT




The record industry operates on hype. The latest hype is that they were never the "record" industry, but they were always the multi-format music/broadcasting industry, ready to sell plaintiff's 50 year old recorded performances on the internet in the form of digital song files (as if they and not Al Gore invented the internet).


Wax cylinders, 78 rpm shellac disks, vinyl Lp's, 45's, cassettes, 8 tracks, CD's - these are the various formats that the recording industry has sold copies of music in since the turn of the 20th century. They are all tangible, as opposed to intangible. The Copyright act itself states in the definition of "copy" and "phono record" that they are "material objects" See 17 U.S.C. 101. The collective bargaining agreement that controls much of the recording industry - the AFTRA "Phono Code" - even states in its preamble that recordings made under this code cannot be used in any other media unless that media is covered by a collective bargaining agreement ( which for 50 years meant the television industry).


Now all of a sudden, consumers don't wan't tangible "copies" - they want digital sound files from the internet. The record companies want to provide that, even though such files compete with royalty producing tangible "copies" , and have no direct royalty provision for which the artists can be compensated, and were clearly not in the minds of the parties to the contracts. This much is not disputed.


What is disputed is whether the record companies have to pay the artists anything at all. They alternatively take the position that no royalties are due, or that the artists will get "what the contracts require" - which the artists take to be shorthand for zero, or even represented in open court ( at the second circuit court of appeals in the related case Chambers v. Time Warner, et. al. ) that the artists would receive some sort of payment for intangible digital sales and uses. Now, under the recently decided Greenfield v. Philles (cite) , the trial court, (to which this case was transferred by the federal court by stipulation,) dismissed the complaint, essentially ruling for all time ( and for all artists) that no payment is ever going to be due, while ignored the actual contractual language, relevent collective bargaining agreements, plaintiffs'** actual claims and plain common sense.








In dismissing Appellants' breach of contract claims, the Supreme Court relied solely on Greenfield v. Philles and Chambers v. Time Warner. (1) The Supreme Court erred in such reliance, as Greenfield v. Philles may be distinguished from the case at bar in three essential aspects. First, the record contracts in this case, unlike in Philles, prohibit (expressly or by virtue of the Phono Code) the uses made by the appellees. Second, in this case, Appellants have alleged that the use at issue not only exceeds the royalty producing uses contemplated by the parties and authorized by the contracts, but actually competes with such royalty producing exploitations. Finally, in this case the appellants seek an equitable apportionment of infringement damages recovered under the Copyright Act, while in Philles the appellants did not. Indeed, the record companies admit they owe a share of the proceeds to the appellants. Therefore, the Supreme Court erred in applying the Philles decision to the case at bar.

Rather than taking advantage of ambiguities and overstating vague principles found in New York jurisprudence which recently lead to the absurd conclusion in Greenfield v. Philles that " effectively prevents appellants from sharing in the profits that [the record companies] have received from synchronization licensing," 2002 WL 31319537 at 5 (N.Y.Ct.App. Oct.17, 2002), the Supreme Court must give a fresh and balanced look at the express language of the contracts at issue, as well as those supplied by the Phono Codes, to decide Appellants' contract claims. The Supreme Court failed to do so.

Had the Supreme Court considered the express language of the contracts at issue, as well as the modifications provided by the Phono Code, it would have reached an entirely different result. Not only are all the contracts at issue limited to sales of phono records and other such tangible royalty-producing goods, but the contracts also explicitly prohibit the exploitation of appellants' sound recordings across computer networks. Lester Chambers' contract expressly forbids CBS from using "the master recordings . . . in connection with so-called 'sight and sound' devices' without [The Chambers Brothers'] express written consent." DeFilice Affidavit, Ex. 1 (letter agreement dated as of August 1, 1966), ¶6, p. 2, A__.

Furthermore, the Supreme Court misread the phono codes, which modify all aspects of the contracts at issue by providing the minimum level of protection for the artist, below which the subject contracts may not fall. Therefore, contrary to the Supreme Court, the Phono Code's prohibition against making master tapes available in another medium does indeed affect the broader contractual provisions that convey the artists' property rights to the record companies, and must be considered when interpreting the grant of rights provisions in the contracts. It defines records in a way to preclude exploitation of sound recordings intangible format, and specifically forbids the use of appellants' sound recordings on the internet in such format, stating

"The phonograph recordings covered by this Agreement are herein called "recordings" and include single records, long playing or extended play records, or other microgroove recordings or tape or any other similar or dissimilar device now or hereafter devised. The Company agrees not to make master tapes or portions of master tapes . . . available for use of any kind or nature whatsoever in any other medium."


Rifkin Decl., Exs. 1-6, p. 1 (emphasis added).". See A__.

Finally, the Supreme Court ignored contract provisions which require that the record companies apportion licensing fees to appellants. Tony Silvester's contract, as well as an addendum to Lester Chambers' contract, contains a 50% licensing provision which would entitle appellants to licensing fees recovered from MP3.com and future licensing fees. See A___ and A___. These licensing provisions were not considered by the Supreme Court.

The Supreme Court also failed to consider the statements made by Appellees in the related case in federal court, and the decision in the Sheldon case when it determined that Appellants are not entitled to an equitable apportionment of MP3.com infringement damages and license fees. At the Second Circuit hearing on December 11, 2001, in Chambers v. Time Warner, Katherine Forrest, Esquire, who argued for all four appellees, was asked by Appeals Court:

"So your clients have agreed to share the recovery in the satellite litigation with these artists?" Her response was simple and direct: "That is, that is correct. Each and every one." See Rifkin Decl., Ex.7, p. 1.

The Supreme Court refused to consider the impact and relevance of this decision to apportion the damages to the artists, a decision after previously denying such an apportionment, and only after 20 months of litigation of this issue. Instead, the Supreme Court simply ruled that these judicial admissions must be interpreted in the forum where they were made. However, judicial admissions made by a party in one Court can judicially estop that party from taking contrary positions in another Court. See Morgenthow & Latham, et al. v. The Bank of New York, 305 A.D.2d 74, 78-79, 84; 760 N.Y.S.2d 438, 441-442, 444 (1st Dept., 2003) (dismissal of claim required where Appellants' claim of justifiable reliance was flatly contradicted by their agent's allegations in the federal action.) Appellees decision to pay appellants a portion of the MP3.com proceeds was made as a direct result of this litigation, and therefore would entitle appellants to summary judgment. See Vanriel v. A. Weissman Real Estate, 283 A.D.2d 260, 725 N.Y.S.2d 514, 515(1st Dep't 2001). McClintic v. Sheldon, 269 A.D. 356, 55 N.Y.S.2d 879 (1st Dep't 1945), affirmed 295 N.Y. 682, 65 N.E.2d 328 (NY 1946), also provides authority for such an apportionment and was not considered by the Supreme Court.

The Supreme Court also failed to consider the most recent decision in Sony Music Entertainment, Inc. v. Robison, 2002 WL 550967 (SDNY, April 11, 2002) and the Beatles case when it found that Appellees owed no fiduciary duty to Appellants. Recently, in Sony Music Entertainment, Inc. v. Robison, the Court granted appellees leave to amend the Third Counterclaim for breach of fiduciary duty. The Court also failed to consider the long-standing relationship between the parties, which had established a fiduciary duty between Capitol Records and the Beatles in Apple Records v. Capitol Records, 137 A.D.2d 50, 529 NYS2d 279 (1st Dept., 1988).

The Court additionally misconstrued Appellants breach of covenant of good faith and fair dealing claim, which relates to the release of unprotected masters, rather than to the proceeds recovered in the MP3.com and Napster litigations. The Court erred by assuming that the appellees did not act in a way to prevent performance the rights under the contract or intentionally interfere with appellants' rights to obtain royalties. Rather, appellants alleged in paragraphs 33 through 35 of the Complaint that appellees were aware of the risk of piracy that could result from the release of unprotected masters, but decided to go ahead and sell CD's without copy protection because of a slump in phonograph sales, thus impairing appellants' royalty stream.

Finally, the Supreme Court erred by concluding that the statute of limitations on Appellants common law claims began to run in the early 1980's, when CDs were first released, rather than in the late 1990's, when digital online piracy caused Appellants injury.


II. QUESTIONS PRESENTED

Appellants raise the following questions on appeal:

1. Did the Supreme Court err in relying on Greenfield v. Philles to dismiss Appellants' breach of contract claims, where the appellees in the case at bar, unlike in Greenfield, were clearly prohibited from competing with Appellants' record sales by using Appellants' sound recordings on the internet?

2. Did the Supreme Court err in refusing to consider the fact that appellees had admitted in the related case that Appellants were entitled to a portion of the proceeds recovered from the MP3.com litigation?

3. Did the Supreme Court fail to consider relevant facts and case law, including the long-standing relationship between the parties and the Apple Records v. Capitol Records, 137 A.D.2d 50, 529 NYS2d 279 (1st Dept., 1988), when it found that defendant did not owe a fiduciary duty to the appellants?

4. Did the Supreme Court misconstrue Appellants' breach of covenant of good faith and fair dealing claim and incorrectly assume that defendant did not intentionally interfere with appellants' rights to obtain royalties under contracts?

5. Did the Supreme Court erred by concluding that the statute of limitations on Appellants common law claims began to run in the early 1980's, when CDs were first released, rather than in the late 1990's, when digital online piracy caused Appellants injury?

III. STATEMENT OF FACTS


Appellants and putative class representatives Tony Silvester, Lester Chambers, Carl Gardner, and Bill Pinkney are legendary recording artists whose careers span six decades but who have little to show for the commercial success of their records. (2) The record company Appellees contend that they have so-called "digital rights" in Appellants' music, so that they could use and authorize others to use these sound recordings in intangible format across computer networks. They have admitted in other litigation, such as U.M.G. et al. v. mp3.com, Inc., and R.I.A.A., et al. v. Napster, Inc., that such Internet uses compete with and adversely impact the sale of pre-recorded music on compact discs and other tangible formats, from which Appellants make their livelihoods. (CITE)

The purpose of each of the record contracts was to produce and sell tangible copies of master recordings containing the Appellants' performances, usually in the form of records or tapes, in exchange for the payment of royalties on each copy sold, based upon complex calculations beginning in all instances with the retail sale price for the copies. They all contained a clause which purported to assign or acknowledge the assignment of rights in the performances, and the right to claim copyrights therein, to the record companies, and authorized the record companies to use the performances in different forms or media. However, none of the contracts concerned digital distributions or broadcasting of the performances, and did not provide a basis for the record companies to calculate royalties, since the royalty payments set forth in the old contracts were based only upon the sale of tangible copies of the recorded music (such as vinyl albums, cassettes, or CDs).

All of the Appellants' recording contracts were subject to the controlling terms of the National Code of Fair Practice for Sound Recordings of the American Federation of Television and Radio Artists ("AFTRA Code"), a collective bargaining agreement negotiated between the record companies and the artists' union. Among other things, the AFTRA Code (as amended from time to time) defined the terms used in the music contracts and established that the contracts applied only to tangible copies of recorded music, not to the ephemeral data files in which music is transmitted over the Internet. Since use of Appellants' sound recording on the internet is not authorized by Appellants' contracts, as modified by the Phonocode, Appellants are entitled to the proceeds obtained by Appellees for such exploitation.

By releasing unprotected digital clones of Appellants' master recordings, Appellees are also responsible for digital piracy which has greatly harmed Appellants receipt of royalties. In the early 1980s the record companies were faced with moribund record sales. After years of growth, record sales steadily declined beginning in the late 1970s. The slump in sales substantially reduced the revenue of the record company Appellees. Id. To revitalize their industry and recover their lost revenues, the record companies decided to release sound recordings as digital audio files on a new medium, compact discs ("CDs"), in the early 1980s.

Because of the nature of digital audio files, CDs were and are capable of being copied or reproduced exactly, without the loss of any sound characteristics and without the addition of any unwanted distortions or noises associated with the copying of analog recordings. While each successive copy of an analog recording is inferior to the preceding copy, each copy of a CD is the same - an exact clone - of the preceding one.

The record company Appellees released the sound recordings in the form of digital audio files into the public without any protection against unauthorized duplication of the digital audio data on the CDs. The digital audio files on each and every CD sold since the early 1980s are identical to the master recordings themselves. In effect, the record company Appellees have given the Appellants' extremely valuable master sound recordings to the public. Appellants therefore also challenge Appellees' decision to sell digital clones of Appellants' master recordings in the form of CDs without copy protection.

A considerable part of this case has become a dispute over the payment of the proper share of more than $150 million the record company appellees obtained from non-party MP3.com, Inc. ("MP3.com"), in related litigation in the United States District Court for the Southern District of New York, captioned UMG v. MP3.com, No. 00-CV-0472 (JSR) (S.D.N.Y.) (the "MP3.com litigation"). This recovery represents both infringement damages as well as future licensing fees. As a result of 20 months of litigation between these parties over the appellants' entitlement to their share of the proceeds when this case was before the United States Court of Appeals for the Second Circuit the record companies judicially admitted that they would share the proceeds obtained from MP3.com with them and the other members of the Class they seek to represent. The record companies still refuse to disclose how those proceeds were allocated.

When the appellants filed a second amended complaint in the federal court dropping a claim under the federal Declaratory Judgment Act, the parties stipulated that the federal court no longer had subject matter jurisdiction, and the action was dismissed for refiling in this Court. Appellants then filed a complaint in the state court, requesting an apportionment of the infringement damages recovered in the MP3.com litigation (Counts I and II); alleging Negligence and Gross Negligence (Count III), Breach of the Implied Covenant of Good Faith and Fair Dealing (Count IV), for releasing unprotected masters into the stream of commerce in the form of CDs lacking copy protection, which lead to rampant music piracy damaging Appellants' royalty stream; Breach of Fiduciary Duty (Count V) for also competing with sales of Appellants' sound recordings by exploiting Appellants' sound recording across computer networks without payment to Appellants; and claiming Breach of Express and Implied Contract (Count VI) for Appellees' failure to share licensing fees for internet use of sound recordings with Appellants. Appellants' claims were dismissed by the Supreme Court by decision dated June 20, 2003, from which Silvester, Chambers, Gardner, and Pinkney appeal.






















IV. LEGAL ARGUMENT

A. The Supreme Court erred in relying on Greenfield v. Philles to dismiss Appellants' breach of contract claims, since the appellees in the case at bar were clearly prohibited from competing with Appellants' record sales by using Appellants' sound recordings on the internet.


In dismissing Appellants' breach of contract claims, the Supreme Court relied solely on Greenfield v. Philles and Chambers v. Time Warner. This was clear error, since the case at bar is distinguishable from Greenfield v. Philles in significant respects. Unlike the contract at issue in Greenfield v. Philles, Appellants' contracts contain reservations of rights by the Artists, provided specifically by the contracts themselves, as well as by the Phono Codes which place limitations on the contracts. Furthermore, the exploitation of sound recordings by Appellees directly competes with sales of Appellants' tangible product, which was not the case in Greenfield v. Philles.

1. Unlike in Greenfield, Appellants' Contracts Here Contain Explicit Reservation of Rights by the Artists


The decision in Greenfield v. Philles was based on the fact that there was "no explicit reservation of rights' in plaintiff's contracts. The Supreme Court failed to recognize (or even consider) that such is not the case here.

The appellants in Greenfield sought royalties for the appellees' new uses of their sound recordings. However, the appellants conceded that the record contract "unambiguously gives appellees unconditional ownership rights to the master recordings." 98 N.Y.2d at 569. As a preliminary matter, the Court of Appeals noted that "[e]xtrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide." Id. at 569. In light of the Ronettes' stipulation that the contract unambiguously granted unconditional ownership rights in their sound recordings to Philles Records, there was in fact little for the Court of Appeals to decide.

To the contrary, in this case, the appellants allege that they entered into record contracts with the record company appellees that did not grant unlimited or unqualified ownership of their sound recordings to the record companies. Rather, the record contracts themselves limited the rights that were conferred upon the record companies. The contract at issue in the Greenfield case contained no such limitation on the appellees' right to use the sound recordings, and indeed the appellants stipulated that the appellees were given "unconditional ownership" of the sound recordings in that case.

The appellants in this case do not concede that they unambiguously assigned "unconditional ownership rights" in their sound recordings to the record company appellees. Appellants allege that they did not confer upon the record companies the right to use their sound recordings in any medium other than phonograph records, but that the record companies have nonetheless used the sound recordings in another media (i.e., as ephemeral digital audio files transmitted over the Internet). Since this critical issue was not before the Court in Greenfield, that decision cannot possibly control or even influence this Court's decision.

a. Express limitations in the contracts themselves


Appellants' contracts contained express reservations of rights which would prohibit Appellees from exploiting Appellants' sound recordings in intangible format across computer networks. When The Chambers Brothers signed their record contract with CBS Records (now owned by defendant Sony) in 1966, they entered into a contemporaneous letter agreement that expressly prohibited CBS Records from using or permitting others to use "the master recordings . . . in connection with so-called 'sight and sound' devices' without [The Chambers Brothers'] express written consent." DeFilice Affidavit, Ex. 1 (letter agreement dated as of August 1, 1966), ¶6, p. 2. That is, in the letter agreement, CBS Records agreed not to use The Chambers Brothers' sound recordings on one particular medium - sight and sound devices - without The Chambers Brothers' written consent. If a personal computer is a device, it is a "sight and sound" device, as it is capable of displaying video images as well as playing audio recordings. Thus, the express terms of plaintiff Chambers' record contract prohibit them from using his master sound recordings in connection with personal computers. The Supreme Court did not consider this provision.

Furthermore, all of the contracts at issue were limited to the sales of sound recordings in the form of phonograph records or other tangible medium. See A.__. It did not authorize the record companies to send digital audio files over the Internet - a use that was admittedly not contemplated by the parties when the record contracts were signed. See Rifkin Decl., Ex. 5, p. 1. A__.

The Supreme Court failed to consider the specific licensing provisions in the contracts which would entitle the appellants to a portion of licensing fees recovered by the record companies for use of appellants' sound recordings across computer networks. In a provision from Silvester's contract that the Supreme Court ignored, the record contract expressly provided that The Main Ingredient were to be paid 50 percent of PolyGram's "net receipts" from uses of the sound recordings other than sales of phonograph records, including but not limited to licensing on a flat-fee or other royalty basis, fees for promotional or commercial uses, and fees for background music, and television and movie synchronization. (3) Comp., ¶ 26; Boatman Aff., Ex. 1, ¶ 7.06(a)(iii)-(v).

Likewise, the Chambers Brothers were paid 50% of licensing fees for such uses. (4) To the extent that the record companies were permitted to use the appellants' sound recordings as digital audio files over the Internet and across computer networks, the parties intended that the appellants would be paid something for such uses. The intention to pay the appellants' for such uses of their sound recordings was manifested in the contracts and expressly provided for a 50/50 share of net receipts from uses including third party licensing. This much is indisputable.

The Supreme Court did not consider the fact that the entire amounts paid by MP3.com may be deemed to be licensing fees received by the record companies, and subject to this 50% split. After admitting that the record companies would share one-half of the proceeds of the MP3.com litigation with the appellants, counsel for the record companies stated:

I would view that as a payment. It might be under a licensing agreement as opposed to a sale of a record, and therefore it might be considered - the term would be payment as opposed to royalty, but yes.




Rifkin Decl., Ex. 7, p. 2. Regardless how the payments are characterized, the appellants allege that they have not received their share despite the record companies' obligation to pay them and their judicial admission that they would do so. Comp., ¶¶ 57 and 64. The 50 percent licensing split entitles the appellants to share one-half of the licensing fees received by the record companies in the UMG litigation.

b. Limitations imposed on Appellees by Phono Code

The phonocode also prohibits the appellees from exploiting sound recordings in intangible format. This limitation did not exist in the Greenfield case. The Supreme Court erred when it considered the Phonocode irrelevant to the case at bar. The Supreme Court cited the vacated decision by the United States District Court for the Southern District of New York, Chambers v. Time Warner, Inc., 123 F.Supp.2d 198 (S.D.N.Y. 2000), vacated, 282 F.3d 147 (2d Cir. 2002), for the proposition that the Phono Code is irrelevant because it merely sets "minimum standards" for record contracts like the ones at issue in this case. However, the decision in Chambers v. Time Warner, Inc., 123 F.Supp.2d 198 (S.D.N.Y 2000) was vacated and has no Precedential Authority. Cite. Since it is a nullity, this vacated decision has no precedential value. See S.E.C. v. ETS Payphones, Inc., 300 F.3d 1281, 1286-87 (11th Cir. 2002). As appellants explain below, the Phono Codes establish the minimum protections to which an artist is entitled, and prohibit record contracts from taking away those rights. That is, the terms of the Phono Code prevail over inconsistent terms of any individual record contract, unless the terms of the record contract are more favorable to the artist than the terms of the Phono Code. Rifkin Decl., Exs. 1-6, ¶ 17(2), p. 17.

One such protection prohibits the record companies from using the appellants' sound recordings in any medium other than phonograph records.

The appellants allege that each of the record company appellees in this case was a signatory to the Phono Codes (5) in effect when the appellants created their sound recordings. Comp., ¶¶ 5-8, and 20-22, and that each of appellants' contracts were subject to the terms of the phonocode. Comp., ¶ 22; Declaration of Mark C. Rifkin, ¶¶ 4-9 and Exhibits 1 through 6 attached thereto. A___. The appellants also allege that the Phono Codes expressly prohibited the record company appellees from using their sound recordings in any medium other than phonograph records - that is, as digital audio files transmitted across the Internet. Comp., ¶¶ 21 and 22. It appears that Philles Records was not a signatory to the Phono Codes. In any event, the Phono Codes' restriction on the use of sound recordings in any medium other than phonograph records was never discussed by the Court of Appeals and appears not to have had anything to do with the litigation. Here, the record contracts between the appellants and the appellees, as modified by the Phono Codes, all expressly prohibited the record companies from using the appellants' sound recordings in any medium other than phonograph records. In Greenfield, there was no such restriction on Philles Records' right to use the Ronettes' sound recordings.

Under the Phono Code, the record companies agreed not to use the sound recordings in the virtual medium - that is, as ephemeral digital audio files disembodied from any physical device (6) that is capable of being sold. As signatories to the Phono Code, the record company appellees agreed not to use the sound recordings as digital audio files, the very manner that is the subject of this litigation:

The phonograph recordings covered by this Agreement are herein called "recordings" and include single records, long playing or extended play records, or other microgroove recordings or tape or any other similar or dissimilar device now or hereafter devised. The Company agrees not to make master tapes or portions of master tapes . . . available for use of any kind or nature whatsoever in any other medium.


Rifkin Decl., Exs. 1-6, p. 1 (emphasis added). Exchanging ephemeral digital audio files that are disembodied from any tangible object is just such a prohibited use. (7) The Phono Code's reference to "device" applies to the removable media (phonorecord, tape, or CD), and not to the machines on which they are played.

Thus, under the Phono Code, the record companies' right to use sound recordings was limited to microgroove recordings, tapes, or other devices, and were expressly prohibited from using the sound recordings in any other medium, such as intangible format across computer networks.

2. Unlike Greenfield, the defendant's use of appellants' sound recordings directly competed with royalty producing sales of tangible product


Another important distinction between this case and the the Greenfield case is the absence of evidence that the uses at issue in Greenfield interfered with the Ronettes' sale of records. Years after the Ronettes stopped recording, Philles Records began "making use of new recording technologies and licensing master recordings of the Ronettes' vocal performances for use in movie and television productions, a process known in entertainment industry parlance as 'synchronization.' . . . Appellees also licensed master recordings to third parties for production and distribution in the United States (referred to as 'domestic redistribution'), and sold compilation albums containing performances by the Ronettes." 98 N.Y.2d at 567. Such uses would not compete with the royalty-producing sales of Ronettes records.

By contrast, in this case the appellants allege that the record companies' distribution of digital audio files over the Internet directly competes with the sale of their records. Comp., ¶¶ 17, 60, and 77(b). If the Court were to interpret the record contracts in this case as permitting the record companies to transmit the appellants' sound recordings as digital audio files over the Internet without compensating the appellants for that use, it would yield the absurd result that the record companies could engage in activities that compete with the royalty-producing sales of the appellants' phonograph records despite their fiduciary duty to the appellants.

The Supreme Court disregarded the fact that the transmission of digital audio files over the internet, which does not result in a royalty-producing sale, directly competes with the sales of CD's, tapes, and other tangible product.

The Supreme Court also disregarded case law that prohibits such competition by a copyright holder with the beneficiary of the copyright. One who undertakes to exploit intellectual property, such as a copyright on a royalty arrangement, becomes obligated to work it in good faith and for the benefit of the recipient of the royalties, as well as for his own avail. Tri-Star Pictures, Inc. v. Leisure Time Productions, B.V., 17 F3d 38, 45 (1994). Cortner v. Israel, 732 F.2d 267 (2d Cir. 1984) establishes that a copyright holder may be liable for breach of implied obligation not to use title in a way that deprives party of right to royalties. In Cortner, the Second Circuit held that record contracts like the ones at issue in this case impose good faith obligations on the part of copyright holders to refrain from using the copyrighted works in ways which would create competition for that work. The Court in Cortner held that a defendant was liable to the appellants for breach of the implied covenant by using a musical theme in a way that deprived the appellants of their right to royalties. Similarly, in Nelson v. Mills, 278 A.D. 311, 312 (App. Div. 1951), the New York Supreme Court held that a music publisher's duty to exercise good faith toward the plaintiff-songwriters prohibited the publisher from using the plaintiff's composition to fashion a competing song to be sold in place of the appellants' song.

By exploiting appellants sound recordings over the internet without appropriate payment, which reduces the sales of appellants' sound recordings in tangible form, the record companies have used the sound recordings in a way that deprives appellants of their right to royalties. The Supreme Court failed to consider such unfair competition. This competition not only distinguishes the case at bar from Greenfield, but also served as basis for appellants claim for breach of covenant good faith and fair dealing. The record companies themselves are directly and indirectly competing against the royalty-producing sales of phonograph records containing the appellants' sound recordings. Comp., ¶¶ 39 and 41-43.

B. The Supreme Court erred in refusing to consider the fact that appellees had admitted in the related case that Appellants were entitled to a portion of the proceeds recovered from the MP3.com litigation.

1. The Supreme Court Ignored Defendant's Judicial Admission

The record companies have judicially admitted that they owe and would pay a share of the proceeds they recovered from MP3.com in related litigation to the appellants. When this case was argued before the Second Circuit - and after the appellants had been litigating these same claims for more than 18 months - counsel for defendant Time Warner, Inc. ( who argued the case for all the appellees at the hearing) admitted that "[e]ach and every one" of the four record companies would share their recovery from MP3.com with the artists. The record companies are therefore estopped to argue that the appellants are not entitled to the payments they seek in this litigation and have no claim to their share of the proceeds. These judicial admissions would entitle the appellants to summary judgment.) See Vanriel v. A. Weissman Real Estate, 283 A.D.2d 260, 725 N.Y.S.2d 514, 515(1st Dep't 2001); Koslowski v. Koslowski, 245 A.D.2d 266, 664 N.Y.S.2d 821, 822 (2nd Dep't 1997); Walsh v. Pyramid Co. of Onondaga, 228 A.D.2d 259, 643 N.Y.S.2d 576 (1st Dep't 1996); Technicon Home Products Corp. v. American Home Assurance Co.,141 A.D.2d 124, 144, 533 N.Y.S.2d 91, 105 (2d Dep't 1988); and Kurten v. R.D. Werner Co., Inc., 139 A.D.2d 699, 700, 527 N.Y.S.2d 455, 456 (2nd Dep't 1988).

In Counts I and II, appellants seek an equitable apportionment of more than $150 million in infringement damages and licensing fees the record companies received from MP3.com in the MP3.com litigation under Copyright Act and common law principles. The appellees have judicially admitted that they will share the MP3.com proceeds with all artists whose sound recordings appeared on MP3.com's web site. At the Second Circuit hearing on December 11, 2001, in Chambers v. Time Warner, Katherine Forrest, Esquire, who argued for all four appellees, was asked: "So your clients have agreed to share the recovery in the satellite litigation with these artists?" Her response was simple and direct: "That is, that is correct. Each and every one." See Rifkin Decl., Ex.7, p. 1. The record companies are thus precluded from arguing that they are not required to pay the appellants for the transmission of their sound recordings as digital audio files over the Internet.

The Supreme Court refused to consider the impact and relevance of this decision to apportion the damages to the artists, a decision after previously denying such an apportionment, and only after 20 months of litigation of this issue. Instead, the Supreme Court simply ruled that these judicial admissions must be interpreted in the forum where they were made. However, judicial admissions made by a party in one Court can judicially estop that party from taking contrary positions in another Court. See Morgenthow & Latham, et al. v. The Bank of New York, 305 A.D.2d 74, 78-79, 84; 760 N.Y.S.2d 438, 441-442, 444 (1st Dept., 2003) (dismissal of claim required where Appellants' claim of justifiable reliance was flatly contradicted by their agent's allegations in the federal action.)

As alleged in the Complaint, the payments owed to the appellants - which the appellees judicially and publicly admitted they would make - have not been made. Comp., ¶¶ 57 and 64. The Court must accept this fact as alleged. Thus, the appellees have not paid the appellants the amounts they admit they owe to them.


* New York case law supports an equitable apportionment

The Supreme Court failed to consider New York case law that would support such an apportionment of infringement damages. In McClintic v. Sheldon, 269 A.D. 356, 55 N.Y.S.2d 879 (1st Dep't 1945), affirmed 295 N.Y. 682, 65 N.E.2d 328 (NY 1946), the Appellate Division recognized that a copyright owner may be required to share infringement damages with another. In that case, Shelton and another defendant were the authors of a play, "Dishonored Lady." In 1931, they attempted to market the play to MGM, which turned them down. The authors sued MGM for infringement after MGM released a motion picture in 1940 called "Letty Lynton" based upon the "Dishonored Lady" play, and they recovered more than $172,000 in damages from MGM.

McClintic, who had the right to produce the play "Dishonored Lady," sued the copyright holders for a share of their damages. The Appellate Division agreed, and awarded McClintic one-half of the damages recovered by Shelton and the other defendant from MGM based upon his equitable interest in the play. The Appellate Division held, "Appellees here were trustees of the copyright for the benefit of both themselves and plaintiff, and appellees may not, in justice, retain all the proceeds received by them as compensation for an unauthorized appropriation of the play which is owned in part by plaintiff." Id. at 360-361, 882.

Appellants have adequately plead a cause of action in Count I and II. Counts I and II seek the fair apportionment of these infringement damages, and would prevent the legal owners of the copyrights (i.e., the record company appellees) from being unjustly enriched by withholding the entire amount of infringement damages without sharing a portion of them with the other aggrieved parties, the beneficial owners (i.e., the artists). Like the plaintiff in McClintic, they are beneficial owners of copyrights in artistic works and are thus entitled to their share of the proceeds generated from the use of these works, whether authorized or unauthorized. In fairness, the record companies may not retain all of the proceeds obtained for the unauthorized use of the appellants' sound recordings, in which they own an equitable interest. As the Appellate Division recognized in McClintic, the appellants must also be compensated from the recovery obtained in the infringement case.

The Supreme Court misconstrued the appellants' claim for apportionment in Counts I and II as one seeking an allocation of liability for damages among joint tortfeasors under C.P.L.R §1401. The appellants in fact sought an equitable apportionment of proceeds recovered by the appellees from a third-poarty, MP3.com, in which the appellants own a legal and beneficial interest. Their claim has nothing to do with the record companies' status as joint tortfeasors with MP3.com.

The appellants' claim should have been considered as akin to a claim for the imposition of a constructive trust. Under New York law, a constructive trust may be imposed over money in the hands of one person when there is a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment. See Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721 (1976). A constructive trust is "the formula through which the conscience of equity finds expression," is broad in scope, and "will be erected whenever necessary to satisfy the demands of justice." Latham v. Father Divine, 299 N.Y. 22, 26-27, 85 N.E.2d 168 (1949)(quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386; 122 N.E. 378 (N.Y. 1919)). The doctrine of constructive trust is available to prevent unjust enrichment in a wide range of circumstances. See Jacobs v. Abramoff, 148 A.D.2d 497, 538 N.Y.S.2d 841 (App.Div. 1989); Palazzo v. Palazzo, 121 A.D.2d 261, 503 N.Y.S.2d 381 (App.Div. 1986).

A person is unjustly enriched when retention of the benefit received would be unjust considering the circumstances of the transfer and the relationship of the parties" Johnson v. Lih, 628 N.Y.S.2d 458 (3rd Dept. 1995). The appellants have alleged a wide variety of facts that would support such a claim. See Comp., ¶¶ 22, 25, 26, 40, 56, 57, and 80. Their situation is similar to that of the plaintiff in National Benefit Life Insurance Company v. Kelly, 160 A.D.2d 570, 554 N.Y.S.2d 523 (1st Dept., 1990), where it was found that Kelly was entitled to a constructive trust on the proceeds of a life insurance policy by virtue of the stipulation of settlement.

Here, the appellees have admitted owing money to the appellants from the proceeds they have collected. They have not paid the appellants the amounts that they owe. The imposition of a constructive trust is the appropriate remedy in such a situation.


C. The Supreme Court fail to consider relevant facts and case law, including the long-standing relationship between the parties and the Apple Records v. Capitol Records, when it found that defendant did not owe a fiduciary duty to the appellants


In Count V of the Complaint, the appellants allege that the appellees owe them a fiduciary duty. The Supreme Court dismissed Count V of the Complaint on the basis that their relationship with the appellants is entirely contractual and does not give rise to any fiduciary duties. However, The Supreme Court failed to consider the most recent decision in Sony Music Entertainment, Inc. v. Robison, 2002 WL 550967 (SDNY, April 11, 2002) and when it found that Appellees owed no fiduciary duty to Appellants. Recently, in Sony Music Entertainment, Inc. v. Robison, the Court granted appellees leave to amend the Third Counterclaim for breach of fiduciary duty.

Furthermore, There is no bright line test like the one urged by the appellees, on one side of which are cases between parties to a contract and on the other side of which are breach of fiduciary duty cases. See Sony v. Robison, 2002 WL 272406 *3 (S.D.N.Y. 2002)(recognizing that it is not entirely clear when fiduciary duties arise out of a contractual relationship). Consistent with the allegations of the Complaint, it cannot be said with absolute certainty that the appellants can prove no set of facts under which the appellees could be held liable as their fiduciaries. To dismiss this claim was error by the Supreme Court.

The Supreme Court also failed to consider Apple Records v. Capitol Records, 137 A.D.2d 50, 529 NYS2d 279 (1st Dept., 1988), which considered the long-standing relationship between the Beatles and Capitol Records, in holding that Capitol owed a fiduciary duty to the Beatles. Id. at 283. Appellants here have likewise alleged such a long-standing relationship with their record companies which would establish a fiduciary duty. See Comp. ¶¶ 1 through 7, alleging that some these legendary recording artists have been signed since the 1950's. The Supreme Court failed to consider the long-standing nature of this relationship.

Additionally, where the assignee of a copyright owes a duty to the assignor to make the copyright productive (as where the assignor is to receive royalties based upon the exploitation of the copyright) a fiduciary relationship between the parties is said to arise. Warfield v. Jerry Vogel Music Co., 1978 WL 944 *3 (S.D.N.Y. 1978)(citing 2 Nimmer on Copyright, ¶ 132 at 580 (1976))( "if the assignor is to receive royalties based upon the exploitation of the copyright, a fiduciary relationship between the parties arises").

In denying defendant's summary judgment motion on the breach of fiduciary duty claim arising from the publishers acquisition of an interest in a musical work which was in competition with plaintiff's, the court in Warfield recognized that several "New York Courts have mentioned the trust elements that are part of the relationship between a writer and a publisher." Id. (citing Manning v. Miller, 174 F.Supp 192 (S.D.N.Y. 1959), Shisgall v. Fairchild Publications, Inc., 207 Misc. 224, 231; 137 N.Y.S.2d 312, 318 (N.Y.Sup. 1955) , Nolan v. Sam Fox Publishing Company, Inc., 499 F.2d 1394 (2d Cir. 1974).

Manning recognizes the fiduciary relationship which exists between those who convey copyrights and those who promise royalty payments in exchange. In Manning, the composer of a song brought an action for copyright infringement against the defendant music company. The copyright was held by a third-party, the publisher of plaintiff's song, who was not a party to the action. In permitting the plaintiff to pursue a copyright infringement action without the copyright holder's participation, the court held that it was the fiduciary relationship between plaintiff and the copyright holder which gave the appellants standing to sue. Manning, 174 F.Supp. at 196. This fiduciary relationship imposed equitable obligations upon the publisher beyond those ordinarily imposed by law upon those dealing fully at arms length. Id. In Shisgall, the court held that an intentional act by a copyright holder allowing third party infringement would constitute a breach of this fiduciary duty. Shisgall, 207 Misc. at 231, 137 N.Y.S.2d at 318 (citing , supra). The Court in Shisgall found it unnecessary to "use the magic words of 'fiduciary relationship' or to hold that a 'relationship of trust and confidence was created by the contract or to find that defendant became a trustee of the copyright for the benefit of the appellants'" in order to establish a fiduciary relationship. Id.

The facts alleged in the Complaint meet the standards for imposition of a fiduciary duty upon the appellees. The record companies facilitated copyright infringement when they released CDs to the public, capable of being reproduced without any loss in sound quality. There can be no doubt that the record companies have breached their fiduciary duty to the appellants. The breach of fiduciary claim of appellants in Shisgall, surviving a motion to dismiss, was not based on the express contractual reservation of rights, but upon the appellees breach of the special relationship thus created, plus the appellees intentional purpose to destroy. Likewise, here, we need not look to the contract or the conveyance to determine the duty the record company appellees owed appellants. Instead the Court must look to the intentional and affirmative nature of defendant's conduct which permitted copyright infringement to constitute a breach of fiduciary duty.

The Supreme Court erred in relying on Mellencamp v. Riva Music, Ltd., 698 F.Supp. 1154 (S.D.N.Y. 1988) to dismiss appellants' breach of fiduciary duty claim. Mellencamp v. Riva Music, Ltd., recognizes that the trust elements in a publisher-author relationship come into play when the publisher tolerates infringing conduct, or participates in it. In paragraphs 41-43 of the Complaint, the appellants allege that the record company appellees are in fact competing with the royalty-producing sales of appellants' sound recordings. This allegation reaches far beyond a mere failure to promote the appellants' songs or to use their best efforts to sell phonograph records.

In Ediciones Quiroga S.L. v. Fall River Music, 1995 U.S. Dist. LEXIS 2641, 31 (S.D.N.Y. 1995), the district court discussed Rodgers v. Roulette Records, Inc., 677 F.Supp.731, 739 (S.D.N.Y. 1988), another case relied upon by the Supreme Court, but found enough of a fiduciary relationship between the party exploiting a copyright and the party receiving royalty payments therefrom to allow a claim for a constructive trust - one element of which is a confidential or fiduciary relationship.

D. The Supreme Court misconstrued Appellants' breach of covenant of good faith and fair dealing claim and incorrectly assume that defendant did not intentionally interfere with appellants' rights to obtain royalties under the contracts


The Court additionally misconstrued Appellants breach of covenant of good

faith and fair dealing claim, which relates to the release of unprotected masters, rather than to the proceeds recovered in the MP3.com and Napster litigations. Comp. The Court erred by assuming that the appellees did not act in a way to prevent performance the rights under the contract or intentionally interfere with appellants' rights to obtain royalties. Rather, appellants alleged in paragraphs 33 through 35 of the Complaint that appellees were aware of the risk of piracy that could result from the release of unprotected masters, but decided to go ahead and sell CD's without copy protection because of a slump in phonograph sales, thus impairing appellants' royalty stream.

When applied to the record contracts in this case, the implied covenant of good faith and fair dealing not only required the record companies to maximize the attached royalty streams, but also to protect them from piracy or otherwise derogating the artists' interest in the exploitation of the copyrights. In Cortner, for example, the Second Circuit held that record contracts like the ones at issue in this case impose good faith obligations on the part of copyright holders to refrain from using the copyrighted works in ways which would create competition for that work. In Cortner, the Second Circuit held that a defendant was liable to the appellants for breach of the implied covenant by using a musical theme in a way that deprived the appellants of their right to royalties. Here, the record companies have injured appellants by allowing piracy to deplete their royalty streams.

The appellees' release of unprotected CDs into the public breaches the covenant of good faith and fair dealing in two ways. First, releasing unprotected CDs into the public - which are the functional equivalent of distributing the original master sound recordings - unreasonably exposed the appellants to the risk of music piracy. Second, and even more important, the record companies themselves are directly and indirectly competing against the royalty-producing sales of phonograph records containing the appellants' sound recordings. Comp., ¶¶ 39 and 41-43.

E. The Supreme Court erred by concluding that the statute of limitations on Appellants common law claims began to run in the early 1980's, when CDs were first released, rather than in the late 1990's, when digital online piracy caused Appellants injury.

Finally, the Supreme Court erred by concluding that the statute of limitations on Appellants common law claims began to run in the early 1980's, when CDs were first released, rather than in the late 1990's, when digital online piracy caused Appellants injury.

First, the limitations period on the appellants' claims did not begin to run until late 1999 or early 2000 when .MP3 digital audio files first began to propagate on the Internet. Under New York law, a cause of action does not accrue until the last act giving rise to the claim - including the fact of injury - has occurred. See, e.g., Water Auth. of Western Nassau County v. Lockheed Martin Corp., 276 A.D.2d 624, 714 N.Y.S.2d 726(2nd Dep't 2000)("the three-year period commences from the date of discovery of the injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should have been discovered").

Before late 1999 or early 2000, the appellants had not been directly injured by the record companies' negligence, even though the seeds of their injury had been sown almost twenty years earlier. The appellants have alleged that the offending use of their sound recordings did not first occur until late 1999 or early 2000. See Comp., ¶¶ 36-37. The appellants do not anticipate that the appellees will dispute this fact, but it must be accepted as true by the Court for purposes of the motion to dismiss in any event.

Second, a continuous wrong will give rise to successive causes of action. See 78/79 York Associates v. Roland Rand, 672 N.Y.S.2d 619, 623 (N.Y. 1998)(citing 509 Sixth Avenue Corp. v. New York City Transit Authority, 15 N.Y. 2d 48, 255 N.Y.S.2d 89, 203 N.E.2d 486 (N.Y.1964)). "Despite the general principle that a cause of action accrues when the wrong is done, regardless of when it is discovered, if the wrong is continuing, so that each day gives rise to a new cause of action, then each day will also bring a new statute of limitations." 78/79 York Associates (citing McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C 203:1 at 141).

At the very least the appellants are allowed to recover damages caused by the appellees' negligence from April, 1997, three years prior to the commencement of their original action in federal court because appellees have continued to release appellants' sound recordings in CD format since the early 1980s. As for the appellants' breach of fiduciary duty claim, that too is subject to a continuing breach doctrine. See, e.g., Reich v. Glasser, 1996 WL 243243 (S.D.N.Y. 1996)(failure to adjust the interest due on loan repayments to a "reasonable rate" constitutes a continuing breach of fiduciary duty; running of the statute of limitations begins anew with respect to each loan repayment).




IV. CONCLUSION

For all of the foregoing reasons, the appellants request the Court to vacate the Supreme Court's Order dismissing Appellants claims, Counts I through VI.


Dated: __________ WOLF HALDENSTEIN ADLER

FREEMAN & HERZ LLP




By:

Fred T. Isquith (FI 6782)

270 Madison Avenue

New York, NY 10016

(212) 545-4600


FELDMAN & ASSOC.

Lawrence E. Feldman

101 Greenwood Ave., Suite 200

Jenkintown, PA 19046

(215) 885-3302


Attorneys for Appellants and the Class

1. Reliance on
Chambers v. Time Warner was clear error, because, as the Supreme Court pointed out on page six of its decision, the Southern District Court's decision in Chambers v. Time Warner (upon which Greenfield v. Philles also relies) was vacated and remanded, and therefore may not serve as precedential authority. S.E.C. v. ETS Payphones, Inc., 300 F.3d 1281, 1286-87 (11th Cir. 2002).

2. Tony Silvester performed as a member of the recording group The Main Ingredient, pursuant to contracts with RCA Records as predecessor to appellee BMG Entertainment, Inc. and Polydor Records, as predecessor to appellee Universal Music Group, Inc.; Lester Chambers performed as a member of the recording group The Chambers Brothers, pursuant to a contract with Columbia Records, predecessor to appellee Sony Music Entertainment, Inc.; Carl Gardner performed as the founder of the recording group known as The Coasters, pursuant to a contract with Atlantic Records, predecessor to appellee Time Warner; and Bill Pinkney performed as the founder of the recording group known as the Original Drifters, pursuant to a contract with Atlantic Records, predecessor to appellee Time Warner.

3. Under the record contract, "net receipts" are the amounts received by PolyGram from the exploitation of the sound recordings less costs or expenses it is obligated to pay to third parties for such uses (such as mechanical copyright payments). See Boatman Aff., Ex. 1, ¶ 7.06(b).

4. Such a 50% split is also the industry standard. See Comp. 26.

5. A series of collective bargaining agreements between the record companies and the artists' union, known as the
National Codes of Fair Practice for Sound Recordings of the American Federation of Television and Radio Artists (the "Phono Codes"). Comp., ¶22

6. It should be noted that a "device" is commonly understood to be "a piece of equipment or a mechanism designed to serve a special purpose." Webster's Ninth New Collegiate Dictionary (1985), p. 347. A digital audio file is not a "device," however broadly the term may be defined.

7. The record company appellees admit as much. When arguing that the record contracts gave them the right to use the appellants' sound recordings in any format - a claim the appellants deny - the appellees concede that a "copy"
must be "a material object." Defs. Mem., pp. 26-27, n. 19. A digital audio file certainly is not a material object. See also 17 U.S.C. § 101 (definition of "copy" and "phonorecord" as requiring materiality).

I'm glad you never want to sue me Leflaw!


very interesting by the way!
~Code

"A work is ''fixed'' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ''fixed'' for purposes of this title if a fixation of the work is being made simultaneously with its transmission. "

Now, my question is this. Apparently, their definition of "fixed" relies on it being sufficently permanent or stable to being perceived, reproduced, or otherwise communicated of more than transitory duration. But they go further saying that "if a fixation of the work is being made simultaneously with its transmission." To me, that's kind of nebulous.

But, it almost seems copyright law is intending to be ambiguous or nebulous if we read further down...

"''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed. "

The wording " material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." -------to me, if not only talking about devices now, but contrivances which may magically occur in the future. They try NOT to pin down the method of fixation, or what a material object is...

Frankly, to me, a combination sound card, hard drive, and speakers, and software which enables one to hear or perceive sounds...copyrighted sounds, would, on the surface, seem to be described by that passage...because one can use such equipment to reproduce or communicate directly or indirectly, these sounds....

Next, apply the definition to the actual wording of 17 USC 106

"Appellees are also responsible for digital piracy which has greatly harmed Appellants receipt of royalties."

Hey Code, did you this see this? It says "piracy"! : )

"The record companies facilitated copyright infringement when they released CDs to the public, capable of being reproduced without any loss in sound quality. There can be no doubt that the record companies have breached their fiduciary duty to the appellants."

The idea that releasing cd's without copy protection is a breach of fiduciary duty is interesting for sure but sounds like a long shot imho. The contract and mp3.com issues sound good to me. Good luck!

"The digital audio files on each and every CD sold since the early 1980s are identical to the master recordings themselves."

Now we all know this is not true. Will the defendant bring in a mastering engineer to explain how they ruin the sound of the master tape when transferring to cd by using excessive compression and EQ? : )

I hope they do. Most of the younger people don't notice the difference because they practically grew up on digital music of one type or another.

lol...
shakes fist at his nemesis mroop

Larry, I would love to take a pass at this sort of thing and help out with some research but its already written and it's due Wednesday.

is this something that is genuinely going to be filed?
I'll give it a read in a couple hours and give recommendations if it truly is going to be filed.

it would certainly be nice, but at first glance.....

We have an opportunity for a reply, also

could someone summarize this in a few paragraphs for the non-lawyers among us?

yeah there should be a rule on this site, u cant post long-ass legalese documents without an accompanying summary paragraph for non-lawyers

I have issue with the grounds of this appeal.. it seems to me you blame them for releasing easily reproduced copies of the master copy.

This is a problem.. a serious one.. because this will compell the music industry to circumvent this briefing in a number of ways.. highest among them being the release of "non cds" and cds which are programmed not to show their contents to computers, thus hindering fair use.

This briefing is more likely to work against us, the end consumers, than anything else, as it opens the door for justification of the erosion of our rights to transfer the contents of cds onto our computer alltogether.

"ow we all know this is not true. Will the defendant bring in a mastering engineer to explain how they ruin the sound of the master tape when transferring to cd by using excessive compression and EQ?"

that would be the hook mroop.

If what they were selling was not the work they had copywritten, in this case if the work was significantly altered, then you can't really say it was the same work you have copywritten now can you?

"The facts alleged in the Complaint meet the standards for imposition of a fiduciary duty upon the appellees. The record companies facilitated copyright infringement when they released CDs to the public, capable of being reproduced without any loss in sound quality. There can be no doubt that the record companies have breached their fiduciary duty to the appellants"

what about the AHRA?

" they want digital sound files from the internet. The record companies want to provide that, even though such files compete with royalty producing tangible "copies" , and have no direct royalty provision for which the artists can be compensated, and were clearly not in the minds of the parties to the contracts. This much is not disputed."

Im having to call BS on this one... intangible digital copies do not compete with tangible ones, and the latest in depth harvard study proves it by showing an effect on sales "statistically equivalent to zero"

I would suggest differentiating between those files downloaded through p2p to which the harvard study applies, and those which are bought which actually DO serve as a substitute because of their very tangible monetary cost

I have to maintain though that a favorable ruling based on this brief will not make anyone immune from further lawsuits, as the companies in question will simply renegotiate contracts or use the obvious loopholes in the brief.

awehr:

You you really think the record companies will take the following position? if they do, imagine the repercussions:

"intangible digital copies do not compete with tangible ones, and the latest in depth harvard study proves it by showing an effect on sales "statistically equivalent to zero"

ps:

awehr, whats your point in regard to the AHRA and fiduciary duty towards artists?

A few points: First, downloaded songs DO compete with the tangible forms. That is why sales of CD singles went in the toilet in the post Napster era. No sane person would dispute this. However, *in general* what the Harvard study showed is that the number of people who download and do not buy the product are offset by the greater number of people exposed to the product who will go out and buy a copy. At least that is my interpretation.

(Many people on P2P related websites will post things like "I will never buy another CD, period" which is equivalent to saying they are not just sampling, they are using downloading as a substitute for purchase of actual tangible CDs. So I think it is crazy to say that free MP3s do not compete at all with physical product. It is just that there are side effects to P2P trading that counteract this tendency, and in essence cancel it out. In the big picture, they do not seem to be competing with the tangible CDs, or if so, it is minimal.)

As for saying that a CD is not a real copy of the master tape because it is compressed and equalized by the mastering engineer? LOL! This is specious. No sane person would argue that a photocopy is not a copy merely because it may add a few specks on the page or it reduces the contrast, or whatever. An imperfect copy is self-evidently still a copy, and can still be infringement, and it can still enable infringement. This is barking up the wrong tree again.

I agree with the sentiment of those who decry the mucking of the sound by mastering engineers, but that is an artistic point, not a legal one.

I sure wish I understood more of the context of this appeal. I take it that this applies to proceeds of MP3.com and Napster lawsuits. Does it also apply to the money the RIAA is extorting out of the 12 year old kids and grandmothers it has been trying to intimidate with threats of lawsuits? Hmmmm? Does it apply perhaps to some online sales like iTunes or the other services? Are some artists perhaps being cheated out of those revenues because no law exists compelling compensation for such forms of distribution?

I dunno. Some aspects of their argument seem frivolous. Or maybe I'm just misreading. I can't read all of it. Not knowing enough legalese and not knowing enough of the legal context of these suits, I get bored rather quickly tryint to slog through all of this.

Lef...looks good to me...I can't find anything else to say.
Hey, you're the lawyer...none of the rest of us (except for mroop) are...

damn...now I have to comment...
autodidact (selftaught) said :
"A few points: First, downloaded songs DO compete with the tangible forms. That is why sales of CD singles went in the toilet in the post Napster era. No sane person would dispute this."

Sales of CDs went into the toilet for a LOT of reasons. One is that people were getting laid off and prices were rising for necessary things, and they didn't have as much disposable income for discretionary items. Number two...music has been going to hell quality wise for a long time...and especially, old farts like me don't like the new crap as much...and we DO tend to be big buyers of music. It's simply not true that MP3 downloading killed CD sales...sure, maybe some people didn't buy CDs because they downloaded singles...but to attribute the drop in CD sales (Music CDs) to downloading, is to fall into the trap of RIAA mindf*cking rhetoric. And, a good many people do consider me sane :")

autodidact...I think you need to re-read the conclusions of the study found at
http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf
from Koleman Strumpf
UNC Chapel Hill
cigar@unc.edu
and
Felix Oberholzer
Harvard Business School
foberholzer@hbs.edu

Their conclusion is stated in their report :
"We find that file sharing has no statistically significant effect on purchases of the average album in our sample. Moreover, the estimates are of rather modest size when compared to the drastic reduction in sales in the music industry. At most, file sharing can explain a
tiny fraction of this decline." (BTW, it was I who originally posted this on this site)

autodidact said :
"As for saying that a CD is not a real copy of the master tape because it is compressed and equalized by the mastering engineer? LOL! This is specious. No sane person would argue that a photocopy is not a copy merely because it may add a few specks on the page or it reduces the contrast, or whatever."

First off..again, I am considered sane, so the global "no sane person" falls flat. It all depends on HOW you define "copy". Is a photocopy a "perfect copy"?
No. If it was a perfect copy..and the machine which produced it, produced perfect copies...you could make a copy of a copy of a copy...for 40 generations, and it would appear identical to the original and we KNOW that is experimentally false. The image degrades within just a few generations to the point of almost becoming unrecognizable. I've done this myself and seen how the data image falls apart. So, a compressed image is merely a facsimile, an interpretation of a master....if it is lossy compression...comparing a jpeg to a tiff file...and it throws out data...obviously this is not a perfect copy under any definition that I am aware of. I could sculpt a tiny image of the Statue of Liberty such that, for all intents and purposes, if I did a good job...people might say it is a copy (movies use miniatures all the time)...but is it really a copy of the Statue of Liberty...i.e. same size, same materials used in construction...same location, same history of coming from France? NO.

"An imperfect copy is self-evidently still a copy, and can still be infringement, and it can still enable infringement. This is barking up the wrong tree again."
Hmmm...I fear we fall into a rhetoric trap, because what defines an "imperfect copy". If I made a sculptor of Venus de Milo, but decided she needs an upturned nose (pug nose)....would that be an "imperfect copy"?

Once you go down the "imperfect copy" slope...you get into the area of derivatives, and there is some point in your modifications that the resultant product will bear little resemblance to the original. There is a "transition zone" if you will, in modifications of something based on something else...where it really loses its fidelity to the original....so, when does it quit being a copy? If I take a new ford pickup, and change the drive train, change the tires and wheels, rid the vehicle of all VIN identification...put a different body style on it...change the motor and put a chevy motor in it...at some point, does it lose its "Fordness" ? Does it quit being a copy of the ford line of products at some point? Aristotle had some interesting ideas about the nature of things...and held there is such a thing as a "pefect chair" and all material chairs are just illusory copies of the ultimate chair.\

" agree with the sentiment of those who decry the mucking of the sound by mastering engineers, but that is an artistic point, not a legal one."

I think it IS a legal question that must be resolved.

"(Many people on P2P related websites will post things like "I will never buy another CD, period"

yes.. people like myself who used to insist on having the cd of the few songs by the RIAA which he did enjoy are thinking again..

why? becauese the funds we give to the RIAA go to the "sue the children" fund and the "stripmine public rights" fund.

This was not the case before they went out, sued napster, sued 11 year old kids, and generally pissed us off.

What I was referring to with the AHRA is that it is actually NOT copyright infringement to make noncommercially used digital or analog recordings of music, and this should make no difference at all if it is online or off.

The statement I quoted with it spoke as if all copies today were infringement.

"Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."


Ill bring out a highlight for my point.

"No action may be brought under this title alleging infringement of copyright based on the .....or distribution of a...digital audio recording medium....or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings."

Now keep in mind the internet was not around so they assumed this protected individual consumers, considering a medium was required to "distribute" it.

This is a very solid point to bring up if you want to make a case for the average consumer not being sued or being wrongly sued.

well.. i suppose if you wanted to call that primitive thing the net compared to what was around by 96'

I know pc's were barely worth the trouble back then.

"First, downloaded songs DO compete with the tangible forms. That is why sales of CD singles went in the toilet in the post Napster era. No sane person would dispute this."

...I am insane?

Well, autodidact, actually, you ARE right... but the greater number of people who are exposed to the music due to the Internet and p2p only increases sales like you said. Sure, some folks don't buy a song because they can hear it on the radio, but MORE folks DO BUY the song BECAUSE they heard it on the radio.

I am with YOU awehr, we need to point out (if not STRENGTHEN) the AHRA. It was a good law that sought balance (before the DMCA and etc. came along)

Shmoo, of Electric Gypsy
(Good luck with it leflaw!)

...and YES, give us non lawyer types a digested summary ALONG with the brief

...lol, a "brief brief" if you will

I shall attempt to distill it...

RIAA Bad....
Fire Good....

End of the Frankenstein synopsis

Good one code.

But SERIOUSLY, please do... you are VERY good at distilling the "whiskey" without introducing poisons. Not all of us are eloquent wordsmiths with the gift of gab.

Ugh, that is difficult (boring) reading... Please, a brief synopsis.
So according to the RIAA, they can interpret the contract and do whatever they want to do with the original recording? And if it is a tangible copy, the artist gets a share of the profits. If it is a download, the artist gets nothing?
Even if it is decided that royalties are due to artists for intangible digital copies, will the RIAA be able to find the artists?

Nope, fraid not Lachatte, not with all those dead presidents in front of their eyes.

I started to read it again, noting that leflaw asked for proofreading. 1. "Now all of a sudden, consumers don't wan't tangible "copies" ...
(remove apostrophe from "want")
2. "though such files compete with royalty producing tangible "copies" ,
(hyphenate "royalty-producing")
3."direct royalty provision for which the artists can be compensated,"
(End this sentence with a period. Insert a subject in the following sentence)

Code, I basically agree with you that "imperfect copy" is a slippery slope. If the master tape is digital, you should be able to make a perfect copy of the ones and zeros, although this isn't what you'd find on a CD, because they transcode from 48kHz sampling down to 44.1kHz on the CD. And so on.

Obviously if you do a "mash-up" of two songs you are substantially changing the work. Now we're getting into grey areas.

But I was only thinking of the question from the standpoint of the average judge, who'd probably apply the "reasonable man" standard. Would a "reasonable man" think a CD was a perfect copy of a master tape? Since most people can't seem to tell the diff between 192kbps MP3s and CDs, I'd have to say, 'Yeah.' But even if it wasn't a perfect copy, the "reasonable man" (in the judge's eye) might think it was more than close enough for infringement.

By the way, I have the pdf of the Harvard study, and I don't disagree with their conclusions. I said lost sales are offset by other factors that increase sales. I don't think that runs counter to their data. In that subset of people who do not buy CDs, downloading self-evidently competes with CD buying, if those people formerly were CD consumers. How big is that subset? I don't know, but it is more than zero.

Yes, Shmoo, absolutely we need to revise and extend, strengthen and enhance, the AHRA. They are taking away rights the end-user used to take for granted.

awehr, it is good that you remind us of those provisions of the AHRA. If we copied our CDs on those MUSIC CD-Rs in which a royalty is attached, we ought to be completely immune from any legal action under AHRA, as long as those copies were strictly for noncommercial use, right?

As far as I know, you can't use Music CD-Rs to copy a CD on a computer CD-RW, can you?

you have a good point, hell, an EXCELLENT point about judges....
and, I think that SOME judges cannot rise to the "reaonable man" standard.

great points and I cannot argue with you on those.

The real danger to the AMRA and the Sony BetaMax decision is section 9 of the new WIPO nonsense...if the US adopts it as a signatory unchanged..conceievably, it would do away with the AHRA and the Sony Betamax ruling and that is indeed a problem!
~Code

meant AHRA (Audio Home Recording Act) of 1992...not AMRA...

Those provisions of the AHRA prove that it was never the intent of the law to criminalize all digital copying. That is what the RIAA would have us believe, and what they'd like to enshrine in new law.

That's something we should remind our Congresspersons of, when we communicate with them.

"that would be the hook mroop.

If what they were selling was not the work they had copywritten, in this case if the work was significantly altered, then you can't really say it was the same work you have copywritten now can you?"

Whether or not it is the "same work" is meaningless. You cannot take someone elses copyrwritten recording and "significantly alter" it and call it your own.

"As for saying that a CD is not a real copy of the master tape because it is compressed and equalized by the mastering engineer? LOL! This is specious."

Actually I was responding in a joking manner to the brief that said "identical" not "real". The brief says:

"The digital audio files on each and every CD sold since the early 1980s are identical to the master recordings themselves."

"This is a very solid point to bring up if you want to make a case for the average consumer not being sued or being wrongly sued."

If it was a very solid point then I think we would have seen some lawyers mention it at some point as a possible defense. Why do you think we haven't?

mroop...leflaw...and any other folks versed in IP law...

What I have never understood is this....
Let's say you start with a picture of a circle that someone drew, and you know someone else drew it. You start painting mountains in the background, maybe a lake...maybe an old farmer ploying the fields...and even alter the circle with paints or digitally, such that now, it become a free floating balloon with a string, and paint the inside yellow and with a happy face...

at some point, aren't "original works" altered to the point they are not recognizable as being the same as the original , copyrighted work...ala derivatives....

There's a big group here in Texas called Los Lonely Boys...a great band...but one of their songs has a lead-in that sounds exactly like the lead-in of one of Stevie Ray Vaughns tunes....is using one musical phrase from one song, in another, enough to determine the latter work is infringing?

I guess, I am asking this....is there a continuum in evolution of any work....i.e., music, graphic arts, writing..at which a work is transformed enough such that it is no longer the original?

"nothing new unde the sun"

I'm not versed in IP law and that's a very complicated question but I believe that the test is "substantial similarity".

Here's a couple links:

http://216.239.57.104/search?q=cache:44XnGZdGoWwJ:www.pattishall.com/pdfs/UnderstandingSubstantailSim.pdf+copyright+%22substantial+similarity%22&hl=en

http://www.ibslaw.com/melon/archive/205_qANDa.html

Keep in mind we are talking about writing a new song, not using someone elses recording - which is what awehr was referring to.

PS...sorry for all my typos in that question...e.g, "ploying the fields" should have read "plowing the fields"

"Whether or not it is the "same work" is meaningless. You cannot take someone elses copyrwritten recording and "significantly alter" it and call it your own"

doesnt that apply to your own copywritten works too?

This is what I was saying.

They got copyright on their masters and then significantly altered them before putting them on cds.

This makes them different works entirely and no longer subject to the copyright which was taken out on the masters.

"They got copyright on their masters and then significantly altered them before putting them on cds.

This makes them different works entirely and

No it doesn't. Applying compression and EQ does not make them "different works entirely" and does not make them "no longer subject to the copyright which was taken out on the masters."

Code:
guess, I am asking this....is there a continuum in evolution of any work....i.e., music, graphic arts, writing..at which a work is transformed enough such that it is no longer the original?

Its part of fair use - that the new work be "transformative" in order to not infringe. Copying may be illegal, unless the use is "fair".

As much as I hate to say it I must agree with mroop on this one.

Just because you slightly alter the product does not mean that copyright no longer applies to it. It is very similar to plagerism in that if you add a word here and take one out there you can't say that you wrote the book.

But this is not important in the over all picture of things which should be focusing on the consumers rights to fair use.

mroop.. if you fail to see the vast difference from..say.. the spoken word eq setting in itunes and the dance eq seeting in itunes than i guess your right.. for the rest of us living in the real world it IS a different song.

A good eq can and will radically change which layers of the music are emphasized.. that makes songs, especially techno.. RADICALLY DIFFERENT.

No, I have to agree on this one, too. Compression would not render null a copyright on a work. Think Reader's Digest here, if they were to take a Stephen King novel, for example, and compress it down, Stephen King it would still be a Stephen King novel. Apply the same logic to music of compression by eliminating redundant bits and unnecessary background noises.

I guess you are not living in the real world with awehr. : )

Remember, recorded music is a represention of musical notes and spoken lyrics. That is what is copyrighted, not eq settings or recording quality.

I agree with whatever auto said here.

Thanks to mroop and leflaw for input...

I am still in the dark about whether I can take a picture or song, and change say, fifty percent of its content or structure and make it mine, pursuant to all the original effort I input...fair use is really a fairly nebulous concept...it is a case by case determination...for example....

I lift one paragraph from an article, give proper attribution to source, and comment on it...pretty much considered fair use...

I copy two pages from a book...MAYBE fair use....
I copy two chapters....before you know it...there is SOME point at which the copyright owner is going to whine about it...

I usually refer to
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm for my fair use definition...

I really do wish I could get some sort of definitive answer (but I don't believe there is one) on whether you can take an original picture or song....change it say fifty percent, and then the result be YOUR copyrighted work...without having to give attribution....

For example...I know I couldn't take "Hey Jude" and karaoke it, and just add my own lyrics and call it my song...and vice versa with the lyrics to The Long and Winding Road if I just gave it a different melody...

Oh well...confusion is clouding my mind....enough for tonight....

ShinGodConvoy
has an excellent point I think !

mroop...thanks for the links
http://216.239.57.104/search?q=cache:44XnGZdG oWwJ:www.pattishall.com/pdfs/UnderstandingSub stantailSim.pdf+copyright+%22substantial+simi larity%22&hl=en

http://www.ibslaw.com/melon/archive/205_qANDa .html

very interesting

Remember though, George Harrison got sued because, "My Sweet Lord", sounded too much like, "He's So Fine", ( I don't hear it myself), and Don Henly got sued by his EX-Label for "Boys of Summer" sounding too much like another of HIS OWN songs, "rUN tHROUGH tHE jUNGLE"!
bag that!!!

It was John Fogerty who got sued by Fantasy for plagiarizing himself. He won the case. George Harrison lost.

Code - I am pretty sure you can't use ANY portion of a recorded work without permission. That is known as sampling and you need a license. Lots of songs use James Brown saying "yeah!" and that has to be licensed. Of course, if you take the sample and manipulate it beyond recognition then you won't get caught.

The sampling aspect is another shady area that I think the law needs to look at more closely. Wasn't that one of the issues under protest during Grey Tuesday?

Fogerty might have been sued for plagiarism because he released a song on the same album called "Zaentz Can't Dance" about Fantasy owner Saul Zaentz . The lyrics said, "Zaentz can't dance, but he'll steal all your money". He had to pull the song and reissue the album with the song called "Vanz Kant Danz". Fogerty was also so pissed about his deal that he wouldn't perform CCR songs for many years.

Also from a web site:

"Because of the dispute Fogerty does not speak with his fellow band members
and for a very long time did not play CCR Songs. Some major person in the
industry persuaded John Fogerty to again begin playing his CCR material
telling him that if he didn't, "Every one will think Proud Mary is a Tina
Turner song."

Fellow band members were barred from performing at CCR's Rock'n'Roll Hall of
Fame induction (Fogerty performed with the house band) leaving the remaining
members of the band to walk out during the performance part.

And finally, John did not talk to his brother CCR guitarist Tom Fogerty until
his last days. Fogerty tells the story that in his last conversation with
his Tom still sided with Zaentz. So Fogerty left the room in a huff. Tom
Fogerty died sometime after that, John never reconciling with his brother
Tom."

The remaining members of CCR now tour as Creedence Clearwater Revisited. Elliot Easton of The Cars plays guitar in the new CCR.

"The sampling aspect is another shady area that I think the law needs to look at more closely. Wasn't that one of the issues under protest during Grey Tuesday?"

Yes - the Grey Album sampled the White Album without permission. I don't think it's shady - if someone wants to use your work they should ask permission. What if a Nazi skinhead band wanted to use your music for their pro-Nazi anthem? It seems to me you should have the right to refuse.

I wasn't referring to using a sample of a whole album as being shady, that is clearly not covered by fair use. But the sampling of say a single five or six note riff should -- notice I said should -- fall under the fair use provision for amount used.

Sticking with the literature analogy, if we weren't allowed to sample a small bit from previous works then Webster would own all of us.

I am trying a new experiment.

I am going to xerox Kurt Vonneguts "slaughterhouse Five".
I am going to burn a Rom of the Grey Album
I am going to photograph Andy Warhol's Art
I am going to Sing "Yesterday" backwards and record it.


Then I am going to put the master tape, phot, Rom and xerox into a blender, pour it into a glass, and photograph it and copyright the photograph.


Copyright my ass.

mroop..I KNOW you weren't trying to be condescending by assuming I don't know what sampling is...I certainly do. I play music myself.

And, I guess I must have done a poor job thus far getting my point across...so here goes one more time.

There is a finite number of notes. There are a finite number of rhythms.
Let's take C sharp...songs are written that use C sharp daily....

There is the color cadmium yellow...lots of artists use cadmium yellow in paintings.

So, we will admit that songs and pictures are composed by discrete building blocks that all artists theoretically have access to. A melody has chords, a tempo, etc..

My point is this. There MUST be a point at which the use of these basic elements, constitutes a unique, copyrighted work (listen to some of John Cage and breaking glass stuff), and if we could determine at what point, taking basic building blocks becomes copyrightable, then, theoretically, if we could develop a bright line, then, if you removed one of those elements and changad it...a new copyrighted work would be born.

As I do a lot of writing....I can address it from that point.

For example... say I write... "the"...not copyrightable I don't think.
I add "of", thus it is "of the"...if I could copyright this, then everyone writing anything with "of the" might be claimed to be making a derivative or even infringing.

The I write.."I saw the dog at the left"...tack it on to "of the"...then we have..."I saw the dog at the left of the"...has anyone written that before and thus has a copyright on that? Maybe, ...even probably....

But, then I say...."I saw the upside down dog, sprawled out at the left of the couch, with a clown hat tied to his neck."

If you see what I am driving at, it's this. There is a continuum of creation in which basic, commonly available building blocks (words, notes, colors,etc)
are put together...hopefully in a UNIQUE, never before created, manner.

At some point it IS unique, but the element before uniqueness is achieved, we have something that is NOT unique. If you take away the element that makes it a unique creation, and add something different, it would seem that that, becomes the copyrighted material of the new creator.

Graphics....I find a face in a picture...I do a copy/paste digitally, and put that into a creation I am making (you can substitute any other element, a chair, a line, whatever)...does the fact that I brought over an element from the other work...any element, now poison my new work such that it becomes merely a derivative of the other one? Is it "substantially different" from the other work.

What I drive home here is that, the whole issue of infringement to me, is murky, and is mired in 256 shades of grey.

It is the specific means of expression that is copyrighted...so, if I use elements of the other (say two notes justaposed like they are found juxtaposed in another song), am I a copyright ifringer?

I probably still did a bad job of getting my idea across...but I tried
(c) Copyright 2004 by CodeWarrior. All Right Reserved...lol....

Fair use is unbelievably subjective to me!