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29 October 2013Copyright

Record labels take copyright fight to the skies

United Airlines is facing claims that thousands of songs and music videos used in its in-flight entertainment service infringe the copyright of several music companies.

Record labels including Sony have said the US airline’s on-demand, in-flight music service as well as a “linear, pre-programmed” music service played the songs and videos.

A non-exhaustive list of songs includes hits by Michael Jackson, The Clash, Aretha Franklin and Jimi Hendrix.

The labels, which include Arista Music and Laface Records, say they have not tracked down the names of the videos, but will do during the discovery process.

According the plaintiffs, they have suffered “manifest and irreparable” harm.

The remaining defendants in the case, filed on October 22 at the US District Court for the Southern District of New York, are Inflight Productions and Rightscom, which help to provide the in-flight services.

A Rightscom representative apparently “candidly” told the plaintiffs that United Airlines’s entertainment system involved the reproduction of their copyright and that a licensing system should be created.

Claiming that there has been wilful infringement, the record labels want a preliminary and permanent injunction, the destruction of any infringing copies of songs and videos and statutory damages.

The case, which involves songs produced before and after 1972, highlights a “real oddity” of US copyright law governing sound recordings, said William Hansen, partner at Lathrop & Gage LLP in New York.

Federal copyright law does not protect sound recordings published before 1972, meaning there are a variety of legal regimes covering their protection.

In this case, Hansen said, the Digital Millennium Copyright Act (DMCA) will be an important issue. There is “a split in authority” over whether the DMCA safe harbour actually covers common law copyrighted recordings, he said, as some courts say the legislation’s safe harbour does cover common law copyrighted works, while others say it doesn’t.

In addition, Hansen said, there will be a big dispute about whether the safe harbour, which does cover 1972 works, protects the in-flight entertainment system from copyright infringement.

“That is a factual issue ... But companies like YouTube that take down downloads and streams were the intended recipient of the safe harbour, whereas these guys are running a music service much like an old radio system.”

He added: “The airline bought the songs from the music company, so they might file a cross claim for contributory infringement – their argument, I think, will be that ‘you gave us infringing goods’.

When contacted by WIPR, United Airlines did not comment.

Law firm Jenner & Block is representing the plaintiffs.

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