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Not only in Europe can we find recent IP case law. This is also the case in the United States. Indeed, two recent judgments on copyright have been published in just a few weeks: the California judgment Sirius XM (on music recordings from before 1972) and the New York decision involving Grooveshark (a site for listening music in streaming). gives you more details here.


Howard Kaylan and Mark Volman are the founding members of the Turtles, a famous American band born shortly after the Beatles. Kaylan and Volman realized that the radio station Sirius XM regularly broadcasted (= communicated to the public) their songs, songs written and recorded before 1972. And, of course, without paying any remuneration in exchange to Kaylan and Volman.

The year 1972 is important.

Indeed, the Federal Act on Copyright protects musical creations but only for works created and recorded after 15 February 1972. For works from before 1972, the Federal Law leaves the place to the rules of the various American states until February 15, 2067.

In this case, we must so analyze what the Californian rules say because Kaylan and Volman have introduced their procedure there (the decision does not say why).

Section 980 (a) (2) of the California Code of copyright provides that the author of an original work retains all rights to his works until February 15, 2047 except for what is called “covers”.

The Californian judge will construe this provision by saying that since the article in question provides one and only one exception to the exclusive rights of rights holders (the one on the “covers”), this means that rights holders retain all other rights. Including the power to authorize or prohibit the communication to the public of their works.

The Grooveshark DECISION

Grooveshark was initially a peer-to-peer site before being now only a musical streaming site. Grooveshark has always operated without obtaining any permission of owners of rights.

Sony Music, Warner Bros Records and 7 others brought proceedings against the website and its two co-founders (Samuel Tarantino and Joshua Greenberg) to try to stop the massive infringements committed by the site.

The factual particularity of this case is that, in order to build up the widest possible music library, Grooveshark encouraged and even required its employees to download themselves into Grooveshark servers a maximum of songs.

Based on the overwhelming evidence provided by the rights holders (and despite the fact that Grooveshark illegally destroyed important evidence), Judge Thomas P. Griesa will condemn Grooveshark and his two co-founders both on the basis of 3 theories of “secondary liability” on the basis of direct liability.

Let us recall that the American case-law knows three theories of secondary liability.

The first theory of secondary liability is called “vicarious copyright infringement“. A defendant is liable for vicarious copyright infringement if it profits from direct infringement while declining to exercise a right to stop or limit it. In order to establish liability, a plaintiff must demonstrate that the defendant (1) had the right and ability to supervise the infringing activity and (2) has a direct financial interest in such activities. This is well the case for Grooveshark since, thanks to counterfeits made ​​by its employees, it was able to sell its streaming service.

The second theory is called “inducement of copyright infringement“. In order to establish a claim for the inducement of copyright infringement, plaintiffs must demonstrate that Escape (1) engaged in purposeful conduct that encouraged copyright infringement with the (2) intent to encourage such infringement. A defendant’s intent to foster infringement can be established by evidence of the defendant’s “clear expression” of such an intent, or of affirmative steps that the defendant has taken to foster infringement. Direct evidence of inducement constitutes an advertisement or solicitation that sends a message designed to encourage others to commit copyright violations. American rights holders will prove it by showing a copy of mails written by the two co-founders of Grooveshark in which they encouraged or imposed their employees on threat of dismissal to massivelly download files.

The latest theory, “contributory copyright infringement“, requires that we have knowingly and materially contributed to the infringements committed by another person. A defendant may be held liable for contributory copyright infringement if, with knowledge of the infringing activity, the defendant materially contributes to the infringing conduct of another. Indeed Grooveshark did have knowledge of illegal activities done by his employees and even encouraged them to achieve them.

It remains to be seen the amount of damages that Grooveshark and his two-co-founders will have to pay knowing that the judge also concluded that Grooveshark was able to download in its Central Music Library 5,977 songs whose rights are owned by Sony and others, songs that have been streamed 36 million times.

The fine may be very salty …

For another comment of the Sirius XM ruling, see here.

Pictures: United-States-Flag créé par Julynn B. – Copyright créé par Thomas Hirter – Judge créé par Simon Child – Creative Commons – Attribution (CC BY 3.0) from the Noun Project