Sunday, August 10, 2008
SECOND CIRCUIT COURT OF APPEALS RULES CABLEVISION'S DVR SYSTEM DOES NOT INFRINGE ON COPYRIGHT PROTECTIONS OF MOVIE STUDIOS AND TELEVISION PRODUCERS
As Cablevision Chief Operating Officer Tom Rutledge suggests, this is a hugely-important ruling for Cablevision's DVR service and other prodigy services, "It couldn't be a bigger or more complete win... all aspects of the case were decided our way," Rutledge said to USAToday.
Cablevision's exuberance, however, may be short-lived. The ruling will almost certainly be appealed. In addition, many observers believe the Second Circuit Court of Appeals got this one wrong.
Central to the controversy is the "ad skipping" ability of the DVR system, which, of course, undermines a central principle of viability for Hollywood studios and TV networks.
Time Warner's Turner Broadcasting is leading the charge for Hollywood studios and TV networks. Time Warner and Turner Broadcasting will now need to re-tool its strategy, in its attempt to shut-down the growing use of DVR systems in America's TV-savvy homes.
Here is USAToday's article referenced above (Cablevision wins in ruling on remote-storage DVR), and an opinion on the decision from the LATimes blog (The Cablevision DVR ruling | Bit Player | Los Angeles Times).
Saturday, August 9, 2008
CALIFORNIA SUPREME COURT UPHOLDS STATE'S STRICT BAN ON NON-COMPETITION AGREEMENTS FOR EXITING EMPLOYEES
On balance, the California Supreme Court focused on the harshness of non-competition agreements and the competing interest of company trade secrets. The case is Edwards vs. Arthur Andersen.
Edwards, as plaintiff, argued that he was illegally prevented from pursuing his profession as an accountant and tax manager, via a non-competition agreement with Arthur Andersen, after the 2002 Enron/Arthur Andersen collapse.
The California Supreme Court agreed with Edwards. The non-competition agreement was an illegal restriction on Edward's right to work. In short, the non-competition agreement was illegal under a long-line of California employment law history.
As CNET reports, the decision follows precedent, for the most part. "The California law has been in existence since 1872, forbidding "non-compete clauses" that restrict management employees' options in their next job or business."
"But the law has been interpreted differently throughout the state, and the 9th U.S. Circuit Court of Appeals in San Francisco has ruled in favor of allowing a company to limit their employees' future job choices, as long as it doesn't prevent them from working in the same field."
Now the California Supreme Court has weighed-in. The Court's ruling demonstrates California's overall adversity to non-competition agreements.
The ruling is particularly good news for those in the computer, internet, and digital-media industries, as these sectors of California business have high-mobility and a fueled employee interest in moving to the next opportunity or idea.
As reported, these sectors of the industry have watched the Edwards case closely.
Tuesday, August 5, 2008
SUPREME COURT'S 2006 eBAY "IRREPARABLE HARM" PATENT RULING NOW PLAYS OUT IN IMPORTANT APPELLATE COURT TRADEMARK AND COPYRIGHT CASES
No doubt, this is an important question for intellectual property litigators. The answer may also be, on the short-side, a few years away. [ARTICLE IN A MOMENT]
Tuesday, July 22, 2008
U.S. COURT OF APPEALS FOR THIRD CIRCUIT RULES CBS IS NOT LIABLE FOR JANET JACKSON SUPER BOWL 2004 WARDROBE MISHAP
An estimated 90 million viewers world-wide watched when Jackson's top fell as Timberlake danced closely behind Jackson while singing, "Gonna have you naked by the end of this song."
The FCC deemed the mishap inappropriate and, possibly, willful. In response, the FCC fined CBS, the network host of the 2004 Super Bowl, $550,000 for Jackson's wardrobe failure. The FCC was not alone in questioning whether the Jackson wardrobe mishap was truly accidental.
Regardless, on Monday July 21, the U.S. Court of Appeals for the Third Circuit threw out the FCC fine against CBS. In overturning the CBS fine, the Court of Appeals found that the FCC deviated from its thirty-year practice of fining indecent broadcast programming only when it is so "pervasive as to amount to 'shock treatment' for the audience."
The federal appellate court, while not deciding whether the incident was willful or inadvertent, found that the fleeting nature of the event, and the FCC's deviate approach in dealing with the issue, as opposed to its previous responses to network broadcasting indecencies, did not warrant the fine imposed on CBS.
In its finding, the court emphasized that, while the FCC has discretion in its enforcement powers, "...it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."
FCC Chairman Kevin Martin expressed his frustration with the decision, "I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall."
It is unlikely that the FCC will appeal this court's ruling. Instead, it will push to re-establish its enforcements powers for indecent broadcasts, based on an important Supreme Court ruling that is expected later this year.
A similar decision by the Second Circuit Court of Appeals last June is of note. There, the federal appellate court, in reviewing Bono's use of the f-word at the 2003 Golden Globe Awards, concluded that the FCC's 2004 declaration that "fleeting expletives" should be subject to a hefty fine was "arbitrary and capricious."
In short, the federal courts have not accepted the FCC's aggressive enforcement policies of recent years. The US Supreme Court will weigh in next.
Saturday, July 19, 2008
REGGAE ON THE RIVER SETTLEMENT DETAILS ANNOUNCED, THE TERMS OF WHICH MAY LEAVE MANY HUMBOLDT COUNTY OBSERVERS FRUSTRATED
In short, People Productions/Dimmick Ranch will pay the MCC $500,000, all lawsuits will be dropped, and the MCC will have no rights to produce REGGAE ON THE RIVER on the Dimmick Ranch property, and an adjoining parcel, where the world-famous festival had been produced for 23 consecutive years before the dispute arose.
This leaves People Productions/Dimmick Ranch in full control of events produced on Dimmick Ranch. This will be the second year that the replacement event, REGGAE RISING, will be produced on the Dimmick Ranch property. And, as has been the case for many years, the event is expected to sellout all 12,500 to 14,000 admission, parking, and camping passes released for the three-day event.
The new PP/Dimmick Ranch partnership will also produce a Willie Nelson show in late August on the same property, which is expected to draw at least five-thousand people, as the first non-reggae event produced at the Dimmick Ranch.
These two August 2008 events alone will, likely, net enough income to pay off the entire $500,000 MCC settlement, just months after a settlement was finally reached.
This, effectively, concludes the much-criticized but successful takeover of the event by PP/Dimmick Ranch, and leaves the MCC well-short of income and expectations that the MCC held under the earlier long-term relationship. The MCC does, however, retain its rights in the REGGAE ON THE RIVER trademark, which is now, arguably, substantially devalued.
On the other hand, for People Productions and Dimmick Ranch, the sky is the limit. The two new partners must be feeling pretty good, because this is a major coup. To give perspective, the annual three-day reggae and international music festival has consistently grossed in excess of $3.5 million per year, and is considered by most to be the premier reggae music festival in the world.
Perhaps the linchpin to the takeover of the event by PP and Dimmick Ranch, occurred last winter, when a Humboldt County court denied the MCC injunctive relief in the early stages of litigation, allowing People Productions to bowl-over the ROTR event with its own identical event, on the same property, on the same dates, using the same established relationships, resources, and infrastructure.
Another important problem for the MCC in maintaining its position and interests, was the Humboldt County permit department's decision to allow all permits to produce the event to become under the control of PP/Dimmick Ranch, despite the fact that the permits had originally been granted to the MCC.
However, neither of these two important rulings were challenged by the MCC, perhaps because the MCC's financial resources were now limited due to the ongoing dispute.
In fact, it became apparent to many observers close to the ongoing controversy that the MCC had become particularly disadvantaged in the legal proceedings because of its financial position.
The result is that the MCC, in an understandable but perhaps compromised decision, accepted a pay-out settlement, and the arbitration judge's "arm-twisting" and warning that "no one will win this litigation."
It seems evident, however, that someone did win this litigation, and it is not the MCC.
Here is the first MCC press release on the settlement:
Mateel Signs Peace Accord with Dimmick, People ProductionsThe Mateel Community Center Board of Directors has agreed to drop its claims against Tom Dimmick and Carol Bruno’s People Productions rather than to continue to battle in the courtroom. In return, Dimmick and Bruno will pay Mateel a half million dollars. They will also dismiss all of their lawsuits against the Mateel, its staff and Board of Directors. The Mateel will retain ownership of its trademark, Reggae on the River, kicking off a new era of Reggae this coming Saturday at Benbow Lake State Park.
We feel the need to get on with our lives is important to many people in the community, and that the courtroom drama only continued to hold us all hostage to a future of fighting over a very uncertain outcome. The months of legal battling, the cost of the lawsuit to Mateel donors, and a desire to get on with our real job-running the Community Center, has led us to this difficult decision. Both sides were also motivated strongly by Judge Warren, who twisted everyone’s arms to get us to settle the case. At this point, we feel the settlement path best fulfills our fiduciary duty as the Board of Directors of the Mateel.
We are ever so grateful to the hundreds of community members who’ve supported us through this difficult struggle. It’s been amazing to watch the outpouring of people’s energy to help at the Mateel—something which will need to continue for the Mateel to thrive as a local Community Center. While we believe that the $500,000 isn’t nearly enough, it will help to re-establish a modest reserve for the Mateel, as well as help pay for long-deferred maintenance of the building. But the future of the Mateel no longer lies at the feet of a monster Reggae show—in fact, it remains in the capable hands of the people of Southern Humboldt, and the Mateel will remain strong with ongoing community support.
WHEN IT COMES TO TOURS FOR RAP AND HIP-HOP MUSIC ARTISTS, THE BUCK STOPS WITH CARA LEWIS, THE NO-NONSENSE WILLIAM MORRIS AGENT IN NEW YORK
However, when it comes to touring these artists, and placing them in productive and reliable live performance situations, it has not been an easy road. This was particularly true in the early years of gaining acceptance for the genre. At the time, there were many skeptics. Today the skeptics have been quieted, as RAP and Hip-Hop touring has become one of the most viable commodities of the touring industry.
One agent, Cara Lewis, Senior VP of Talent at William Morris New York, is almost single-handedly responsible for this result.
Cara Lewis joined William Morris as an agent in 1989, and she has led the way in Hip-Hop touring ever since. Her aggressive, no-nonsense approach has set the standard for the development of RAP and Hip-Hop music as a viable live performance commodity, ever sense.
No other agent has close to the influence that Lewis has in RAP and Hip-Hop music touring. If you are talking Hip-Hop touring, you are talking Cara Lewis.
In fact, numerous important agents in the industry, representing many top Hip-Hop and RAP artists now, began their careers in Cara Lewis' William Morris NY office. This includes Peter Schwartz, VP of Talent at the Agency Group, and Eric Wilson, VP of Talent at the Evolution Agency.
Lewis' early success came with artists such as A Tribe Called Quest, De La Soul, Ice Cube, Snoop Dogg, and the new, lighter-sound of groups like the Fugees. Her roster quickly grew to become the toughest and the tightest in the evolving genre.
At the time, there were fewer opportunities and fewer promoters that were receptive to RAP and Hip-Hop music. Promoters listened to the music, and played it in their clubs, but they didn't want to promote the live shows. However, in time, the credibility and viability of touring these artists was established. And, it was Lewis' relentless approach that made this happen.
Now, Lewis' roster is the who's who of RAP and Hip-Hop music. Artists that she currently represents include 50 Cent, Eminem, Ludacris, Sean "Diddy" Combs, Erykah Badu, Gnarls Barkley, Snoop Dogg, Ice Cube, Wyclef Jean, Nas, and Nelly, just to name a few.
Lewis is a yearly nominee and award winner at the annual Pollstar music industry awards, and her roster only continues to grow. She now also tours some of the biggest names in Reggae music, representing Ziggy and Damian Marley, as well as dancehall superstar Sean Paul. Other genres are also mixed in to Lewis' William Morris roster. Alicia Keys is just one example.
Another accomplishment for Lewis is the Smoking Grooves Tour, which was the first multi-artist urban music tour to be placed in 20,000 seat amphitheaters around the country. Prior to Smoking Grooves, the "sheds" were not particularly receptive to the burgeoning Hip-Hop music culture. Now, Hip-Hop and RAP artists are regular faces in the community of top-level touring.
Friday, July 18, 2008
MONTEREY PENINSULA AND LITTLE BIG MAN JOIN IMPRESSIVE ROSTERS TO BECOME, PERHAPS, THE PREMIER MUSIC AGENCY; OFF-SHOOT HIGH ROAD TOURING ON PACE
In 2004, Paradigm purchased Monterey Peninsula Artists, the wildly-successful agency based in Monterey, California. In 2006, Paradigm purchased the New York based Little Big Man Booking, which was considered by many to be the top boutique music agency. This joins two impressive rosters that compliment each other perfectly. The combination also brings together many of the top talent agents in music touring.
At the time of the 2006 purchase, Marty Diamond and Larry Webman's Little Big Man Booking had been named the boutique agency of the year for nine out of ten consecutive years. Over the years, Monterey Peninsula Artists has consistently been named a top major agency by Pollstar, out of only a handful of major agencies.
Both companies, have numerous agents that have won the coveted Pollstar agent of the year award, and the combination of agents and expertise is impressive. The combined roster now includes the biggest of the biggest names in almost all genres of music.
Similar success has been found by Frank Riley and his High Road Touring agency. Frank Riley was one of Monterey Peninsula's top agents when he left the company in 2001 to create the Sausalito, California, based High Road Touring.
Since its 2001 inception, HRT has repeatedly been nominated as the premier boutique agency of the year at the Pollstar Awards, and it won the award in 2008 at the 19th Annual Pollstar industry awards.
HRT's impressive roster includes over 100 well-known acts, the likes of which include Wilco, Feist, Lucinda Williams, Son Volt, and Ween, to name a few. Riley's HRT includes agents who developed their expertise in San Francisco. HRT agent Lisa O'Hara was the talent buyer for the world-famous Great American Music Hall before joining HRT, and Matt Hickey came over from the successful San Francisco based agency Rosebud.
High Road Touring's roster is as eclectic as it is impressive. It is also a roster that is very tour-oriented, which, of course, is good for the bottom line of a talent agency. HRT is on the high road. [More Soon]