Karaoke Forums

If you actually read the thread instead of selected portions, then maybe you'd know!

Actually the disk isn't what you're purchasing. You're purchasing a license to use intellectual property on the disk. No different than an iTunes purchase really. So long as you have a valid license to use the material, in this case a disk, working or not, you can utilize the product.

At least that's what's the legal test is for MP3s ripped from a disk. Karaoke might be different but I'm thinking it likely isn't.

<Edit> Seems Chartbuster's states that you can make a backup copy for yourself. The only logical reason for a backup is to create a new master if the original becomes unusable. They also state that you must utilize their material off of a disk.

And if you didn't take my post out of context, what I said might have actually made some sense to you!

I disagree, & Chartbuster - along with many other manus - state you can make a copy 'for yourself', not for commercial use if the orginal goes bad (although even the copy in commercial environment is supposedly illegal, and without an orignal is even more so).

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Actually the more I read each of the manufacturers license agreements the more confused I've become on the whole thing. Backups are only used when the original is destroyed and you need to replace it.

In the music world this has been tested several times and the courts have found that if you give permission for a backup then it's reasonable use to exercise that backup if the original is no long serviceable. If the license forbids or gives no provision for a backup that action is not considered reasonable use.

Which is why it makes no sense to me that if you have a backup, why can you never use it?
What's the point, then?

So, if SC does not allow digital conversions of their music, why can you purchase 380 of their discs on iTunes for an average of $5.99 per disc? Maybe this can be a cheaper alternative to paying SC $6000 to settle outside of court, . I'm guessing anything bought through iTunes would hold up in a court of law, since they are the leading legal source of pay-per-download sites.

You see that is it EXACTLY... it is the manufacturers license agreement, they vary.

Just because Guns and Roses gives you free digital downloads if you purchase their album on VINYL, it does not impose those rights to every other album sold in the US.

When you open a SC disc, it is their license you agree to... it has nothing to do with the rights that another company might offer.

Will the iTunes purchase give you the legal right to use commercially?

To my knowledge, nobody has gotten sued over personal use.

Actually it does. You cannot write a license agreement that doesn't meet the fair and reasonable examination. Your product needs to operate within the reasonable expectations of the media. If you buy a CD from RCA and one from SONY you can back both up and recreate the master. It doesn't matter if Sony says you can't and RCA says you can. This has been tested in court several times. As a result the manufacturers conform to a reasonable standard and license agreement.

I don't know how/why CD+G disks are different. Are all of the offending lawsuits simply dealing with violation of a license and not the media used? If they are bringing people to suit because they are using a hard drive they've drawn a line in the sand. If they're doing it only for piracy it will be implied that the media is not the issue. Haven't read the filings but it might be worth some time if I happen to find a few hours to read the legalease.

Not an attorney but I work hand in hand with one for software license agreements and this has been a topic of discussion for us. Anyone else have insight into this?

That would be incorrect, if you retained the original disc in whatever condition it is in ( that's what backups are FOR, and a disc to disc backup is not a gray area, with that situation clarified in the late 90's early 2000's software cases. You can make TEN back-up discs, as long as only one is being used at a single site.). A little grayer but fairly safe, is the receipt for said original disc.

Please note that I said backup discs. Ripping is still as gray as it comes...

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No it's not. The proliferation of MP3 devices should tell you that. The only difference between the CD/MP3 relation and the CD+G/MP3+G relation is the graphics track. I'm hoping the latest series of SC lawsuits puts that question to the test and gets a verdict on fair use for that.

If ripping music were a gray area there would be hundreds of DJs paying outrageous settlement fees. In fact it's the act of creating a disk for use and potential distribution that has caused the most fair use tests.

You don't have to believe me, make up your own rulings or wonder about it. Look up the case law associated with MP3s and fair use. Google is a fairly powerful tool.

As posted in another thread with generally the same content:

Unfortunately, it is apparent that Sound Choice has no intention on seeing the inside of a courtroom during these "lawsuits". Even if they did, it would be trademark law that would be tested, not copyright law, which is what format shifting falls under.
And I am willing to bet that Sound Choice will never want the format shifting aspect tested in a court of law, since they know they will lose. The way it is right now, they can cry foul and convince people that format shifting if illegal, even though it isn't - it's just not specifically legal at the moment.

Interesting point. So if SC comes after someone for format shifting and that KJ has all the disks to back up their claim then that KJ should hold firm to force the matter into court.

Interesting that format shifting would be under trademark law. I'm curious why you think that is the case. Are they structuring the claim that moving their logo to a different format is the issue and the content isn't?

Kurt (sc) has stated they WILL ammend the filing to add their copyright permissions if they believe it is necessary. So it is not JUST about trademarks.

Currently it is, but he stated they are filing this way ( trademark) because it is easier for all involved.

LM

No, format shifting is definitely under copyright law. What SC is suing on currently, is TRADEMARK law, very different things.
The only thing they have going for them is that every SC song has their logo shown at the beginning or end of the song and in many cases both.
They are claiming that since pirates never bought the discs in the first place, then they have no right to show the lyric. The problem with this is that they must also prove that it has caused them unfair competition. The average pirate KJ, however, is not in the business of manufacturing, therefore, where is the unfair competition? Sound Choice claims that there IS unfair competition in that the pirates are competing unfairly against legitimate KJs. The problem with this, is that SC is not in the business of hosting karaoke shows, therefore, where is the unfair competition against Sound Choice?
There's much more to it than that, but I've tried to explain it as briefly as I can in the little amount of time I have. If anyone else can help me to clarify, I would appreciate it. Maybe Joe?

Well, until he does amend it, it IS about trademark law and only trademark law. I would LOVE Kurt to take it to court. I'll put money on it that he will avoid it all costs.

Do they really have to prove unfair competition? Is there a possibility that SC may just have to claim damages in some other way?

Considering that any case that ends up in court would most likely be due to a KJ's inability or unwillingness to provide proof of ownership of original disks, then one could ask how, then, did the KJ come to be displaying the SC logo during their gig? One could conclude that the KJ was using an unauthorized copy of the SC track. And since it is an unauthorized copy and not an original, then is the quality of the copy equal to that of the original? Could not SC's reputation for high quality be harmed by their logo being displayed on an inferior copy of their product? And wouldn't they then have a valid claim of misuse of their logo?

Yes, they really do have to prove unfair competition. In order to claim damages, you must PROVE you were harmed by the individual(s) you are suing. It's a standard in any lawsuit.
Explain to me how a KJ can be unfair competition to SC?
Pirate KJs host shows, they don't manufacture discs and then try to sell them.
SC is not in the business of hosting shows, they are in the business of manufacturing discs, and therefore they cannot prove unfair competition and therefore financial loss caused by the people they are suing.

The people they need to go after for trademark infringement are the loaded hard drive sellers. Unfair competition can easily be proved in such a case.

As for ending up in court, you make several assumptions which could turn the case any which way.
Personally, I would end up in court in a heartbeat, because what SC wants me to do to prove to them that I own my discs, I find unreasonable.
They want me to sign an extremely one sided and unreasonable document that no lawyer in his right mind would advise his client to sign.
They want take valuable time from me, without compensation, to examine my collection and then to include manufacturers in their audit to which they hold no right or interest to.
As for quality, I would challenge anyone to try that in court. Any reasonable judge (or person) would not be able to tell the difference in quality from a burned copy, a burned disc, or an original, so I would suggest that tack would go right out the window in a hurry.
Just what is the meaning of a quality product when regarding SC?
Is it the easy to read lyrics? Is it the accurate swipes? Is it the great sounding music?
If so, then they have no case, because all of those things are present in digital the copies. There is no measurable-to-the-average-person quality downgrade, unless someone is ripping at ridiculously low bit rates and in such a case, SC might again have a claim. But that is certainly the exception and not the rule in most of these lawsuits. I suggest they involve at least acceptable bit rates.
But maybe it is the quality of the CD itself?
In that case, they MIGHT have a case, but I sincerely doubt it. SC didn't make a name for themselves on the quality of their discs (ie: tough to break, nice looking, etc).

Now if I played a Music Maestro song and threw a sound choice logo in front of it an began selling copies to everyone, they would most definitely have a claim.

Let's "regroup" here: I have already posted what the essence of trademark infringement involves. You may want to consult the following link and others websites
http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

A. "Trademark Infringement" reflects a situation in which the consumer maybe confused as to the manufacturer/provider of the goods or service. Sometimes the circumstances can involve a "knock off" of the plaintiff's product along with the plaintiff's logo. Sometimes the knockoff has a similar, but different logo as well when compared to the genuine product.

Sometimes the circumstances involve a product that is dissimilar to that of the plaintiff's but there are similarities with the products' logos and the potential to confuse the public. So, if someone markets a computer router under the brand "Honest Peripherals" using a logo designed from the letter "H" and the "letter "P", Hewlett Packard may feel a need to sue

Sometimes the circumstances involve a similar looking logo, but a dissimilar product to that of the plaintiff. However, the plaintiff feels that confusion with the plaintiff's products is likely. Let's say that someone opens up the "Bell Telephone Marketing Service", using a bell as it's logo.

B. What constitutes trademark dilution?

Once the prerequisites for a dilution claim are satisfied, the owner of a mark can bring an action against any use of that mark that dilutes the distinctive quality of that mark, either through "blurring" or "tarnishing" of that mark; unlike an infringement claim, likelihood of confusion is not necessary. Blurring occurs when the power of the mark is weakened through its identification with dissimilar goods. For example, Kodak brand bicycles or Xerox brand cigarettes. Although neither example is likely to cause confusion among consumers, each dilutes the distinctive quality of the mark. Tarnishment occurs when the mark is cast in an unflattering light, typically through its association with inferior or unseemly products or services. So, for example, in a recent case, ToysRUs successfully brought a tarnishment claim against adultsrus.com, a pornographic web-site. Toys "R" Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. Oct. 29, 1996).

So, as hinted to by Diafel, nothing that a pirate is doing is infringing upon SC's trademark. And, theoretically, if the pirate removed the SC logo from every track the following would be true:

a. It would be extraordinarily difficult to even prove the SC tracks were used
b. There would be no infringement upon or dilution of the SC trademark.

And that leads me to the most basic question of whether a trademark infringement suit can consider the loss of sales to SC based upon the use of their tracks by a pirate at his show? A "copyright" infringement case can do that, but trademark infringement? I don't know

And if SC is now stating that they will amend their suits to include copyright violations, I have to wonder about that. They clearly thought out their strategy and concluded that they will have a hard time winning a copyright suit. If that is not so, why then didn't they make copyright infringement part of their suit in the first place?