Tresóna loses big copyright case

[skevinp]

3 minutes ago, Jeff Ream said:

i guarantee Tresona will appeal

It seems likely, although the price goes down further if they lose.  

Given the seemingly new interpretation and need for guidance, I think there is a good chance SCOTUS would grant cert.

[Rich Cline]

More Info on the Tresona case

Decided to check out the Drum Corps Reddit posts to see what was happening there and found out the following info regarding the Tresona topic which provides some added info regarding the topic..

LordLulz posted:

13 hours ago
Direct quote from court ruling: “Tresóna did more than simply pursue an aggressive litigation strategy. It sued a public school teacher, a not-for- profit Boosters Club, and parent volunteers. Both during litigation, and in pre-litigation communications with Carroll, Tresóna repeatedly mischaracterized its copyright interests in the songs at issue by claiming to be the sole entity empowered to issue licenses. In light of Tresóna’s minimal and belatedly produced evidence supporting its claimed chain-of-title, these communications appear specifically designed to frighten Carroll and the Boosters Club into purchasing licenses from Tresóna, rather than to legitimately enforce its limited licensing interests or those of the true copyright owners.”

level 2
morelandjo posted:

7 hours ago
Facts:

Large national choir mish-mashed over 100 songs into their performance. They purchased a custom arrangement, but didn't seek licensing for the individual original songs.

Since they are a super popular choir, Tresona found out, and sued the director, boosters, and several individual parents claiming Tresona was the sole copyright holder of of the written music rights in the US and Canada (they claimed they controlled 70 of the songs, but only sued over 4)

Tresona buys these music rights from big companies like PEN and BMI, giving them the ability of assignment (the ability for Tresona to give licenses)

Turns out PEN/BMI never had the authority to grant the assignment to Tresona, because PEN/BMI never completely owned those songs. Songs are often written by multiple people, and PEN/BMI was not representing all of the people involved, in one case they were trying to grant assignment to Tresona for a song they only controlled 25% of.

So in 3 of the 4 songs Tresona was suing for, the court ruled they did not have standing to sue, because PEN/BMI never had the authority to grant Tresona assignment of those rights in the first place.

In the 4th song, this was considered fair use, see the courts decision here:

The panel stated that it was especially swayed by the limited and transformative nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of high school students. The panel concluded that the music director’s use of a small portion of the song, along with portions of other songs, to create sheet music for a new and different high school choir showpiece performance was a fair use.

My opinion: So in one case, they did conclude that fair use was correct. In the other three cases, they simply ruled Tresona doesn't have the ability to sue. There is no word on if the other 3 were considered fair use, because they ruled Tresona didn't have the right to sue, and stopped there. I would still consider this a gray area as to whether any arrangement for a choir could be considered fair use. The work must hold to some really strict guidelines of fair use legally, and if you're popular enough for Tresona to notice you, you would probably need to be prepared for a lawsuit to defend yourself.

Tresona only sued over 4 of their claimed 70 songs that were infringed, meaning they thought they had the best case on those 4 songs, and they still lost. This doesn't bode well for them, however it also creates headaches for groups like DCI. If Tresona is no longer valid, each group will need to somehow verify copyright status for every song they decide to perform. This can get really tricky, as we've seen from this lawsuit (if 4 people/companies own 25% rights of a song you need permission from all of them), and could further restrict musical selections that might take too much time and effort to get the rights to. Tresona is not well-liked, but it was supposed to be a simple way to know your large scale performance was licensed properly.

[gbass598]

I had questions after reading it a couple of days ago. Maybe I didn't understand properly since I'm not an attorney.

 

1. If I understood correctly, part if the issue is the Tresona claimed to have exclusive license when in reality they only held a partial license from all of the different song writers? Is this going to force people to get permission from every single songwriter in the future? I may be way off on this because it seemed unclear.

2. I get the part about educational use because this involves educational and non profit organizations but does the section regarding creative license become much more subjective to enforce? For example, It seems if you choose to do First Circle by Pat Matheny and do a show about circles, you may be subject to copyright laws but if you use it in a show about squares, you may be off the hook due to creative use and intent?

 

I'm not an attorney but it leaves lots of unanswered questions and doesn't seem like a get out of jail free card for musical copyright.

[TwoValves]

1 hour ago, gbass598 said:

I had questions after reading it a couple of days ago. Maybe I didn't understand properly since I'm not an attorney.

 

1. If I understood correctly, part if the issue is the Tresona claimed to have exclusive license when in reality they only held a partial license from all of the different song writers? Is this going to force people to get permission from every single songwriter in the future? I may be way off on this because it seemed unclear.

2. I get the part about educational use because this involves educational and non profit organizations but does the section regarding creative license become much more subjective to enforce? For example, It seems if you choose to do First Circle by Pat Matheny and do a show about circles, you may be subject to copyright laws but if you use it in a show about squares, you may be off the hook due to creative use and intent?

 

I'm not an attorney but it leaves lots of unanswered questions and doesn't seem like a get out of jail free card for musical copyright.

2)  I think it's more like if you do a show about Pat Metheny and/or the song First Circle, you may be subject to copyright laws.  But if you do a show about circles and a small piece of the song First Circle is included in telling a story about something completely different, you might be able to now claim this is "Fair Use" .   

Related - I read a comment from a legal pro about this ruling today who pointed out that it ONLY applies within the jurisdiction of the 9th Circuit - basically the west coast.  It would require the Supreme Court taking this case on appeal and affirming the ruling in order for it become legal precendent nation-wide.  And he pointed out that about 70% of the 9th circuits rulings have been overturned by SCOTUS.  So as nice as this victory was, we cannot yet take it to mean the entire landscape has changed in regard to Fair Use and Educational/Non-profit use.  

[skevinp]

8 minutes ago, TwoValves said:

Related - I read a comment from a legal pro about this ruling today who pointed out that it ONLY applies within the jurisdiction of the 9th Circuit - basically the west coast.  It would require the Supreme Court taking this case on appeal and affirming the ruling in order for it become legal precendent nation-wide.  And he pointed out that about 70% of the 9th circuits rulings have been overturned by SCOTUS.  So as nice as this victory was, we cannot yet take it to mean the entire landscape has changed in regard to Fair Use and Educational/Non-profit use.  

This is a good point.  The 9th Circuit is “out there” and gets overturned a lot.  The other circuits are not bound by their ruling, but may look to other circuits for general guidance.  

With copyright being federal law and DCI being performed all over the country, this begs the question of where lawsuits may/must be brought and which jurisdiction’s laws will be applied. 

[gbass598]

13 minutes ago, TwoValves said:

2)  I think it's more like if you do a show about Pat Metheny and/or the song First Circle, you may be subject to copyright laws.  But if you do a show about circles and a small piece of the song First Circle is included in telling a story about something completely different, you might be able to now claim this is "Fair Use" .   

Related - I read a comment from a legal pro about this ruling today who pointed out that it ONLY applies within the jurisdiction of the 9th Circuit - basically the west coast.  It would require the Supreme Court taking this case on appeal and affirming the ruling in order for it become legal precendent nation-wide.  And he pointed out that about 70% of the 9th circuits rulings have been overturned by SCOTUS.  So as nice as this victory was, we cannot yet take it to mean the entire landscape has changed in regard to Fair Use and Educational/Non-profit use.  

Another plausible scenario that is not clearly defined in the gray area I mentioned.

[N.E. Brigand]

48 minutes ago, TwoValves said:

Related - I read a comment from a legal pro about this ruling today who pointed out that it ONLY applies within the jurisdiction of the 9th Circuit - basically the west coast.  It would require the Supreme Court taking this case on appeal and affirming the ruling in order for it become legal precendent nation-wide.  And he pointed out that about 70% of the 9th circuits rulings have been overturned by SCOTUS.  So as nice as this victory was, we cannot yet take it to mean the entire landscape has changed in regard to Fair Use and Educational/Non-profit use.  

Just to be clear: it's not true that 70%+ of 9th Circuit rulings are overturned by the Supreme Court. It's nowhere close to that.

What has been true is that 77% of the 9th Circuit cases that the Supreme Court has decided to hear have been overturned -- that's since 2007, which is the data I was able to find quickly.

Here's a chart showing the number and percentage of reversals by circuit since 2007.

It indicates that the most overturned circuits are the 6th Circuit (which runs from Michigan to Tennessee) with 83% and the 8th circuit (from North Dakota to Arkansas) at 79%, with the 9th Circuit in third place (just ahead of the state courts). Again, those are of decisions appealed from those districts that the Supreme Court heard.

In this period, only one circuit, the 1st, didn't have a majority of its decisions overturned: the Supreme Court generally only hears cases where the justice think reversal is possible.

It is worth noting that the Supreme Court has heard more cases from the 9th Circuit than elsewhere: in the period covered by my link, they issued 924 opinions. Of those, 181 had been appealed from the 9th Circuit.

But the Supreme Court just doesn't hear all that many cases: about 80 per year -- only a small percentage of the thousands appealed to it.

And the 9th Circuit is the largest circuit, covering nine states (including the largest) and two territories. That's 62 million people.

The next largest is the 11th circuit, which is Florida, Georgia, and Alabama: 33 million people.

I can't find how many cases were appealed from the 9th Circuit that the Supreme Court declined to hear, nor how many cases were decided by the 9th Circuit and not appealed.

It appears that there were 47,000 cases appealed to all circuit courts last year. How many were decided? No idea.

But I think it's a safe estimate to say that less than 5% of the 9th Circuit's decisions are overturned by the Supreme Court.

 

 

[TwoValves]

Just now, N.E. Brigand said:

Just to be clear: it's not true that 70%+ of 9th Circuit rulings are overturned by the Supreme Court. It's nowhere close to that.

What has been true is that 77% of the 9th Circuit cases that the Supreme Court has decided to hear have been overturned -- that's since 2007, which is the data I was able to find quickly.

Here's a chart showing the number and percentage of reversals by circuit since 2007.

It indicates that the most overturned circuits are the 6th Circuit (which runs from Michigan to Tennessee) with 83% and the 8th circuit (from North Dakota to Arkansas) at 79%, with the 9th Circuit in third place (just ahead of the state courts). Again, those are of decisions appealed from those districts that the Supreme Court heard.

In this period, only one circuit, the 1st, didn't have a majority of its decisions overturned: the Supreme Court generally only hears cases where the justice think reversal is possible.

It is worth noting that the Supreme Court has heard more cases from the 9th Circuit than elsewhere: in the period covered by my link, they issued 924 opinions. Of those, 181 had been appealed from the 9th Circuit.

But the Supreme Court just doesn't hear all that many cases: about 80 per year -- only a small percentage of the thousands appealed to it.

And the 9th Circuit is the largest circuit, covering nine states (including the largest) and two territories. That's 62 million people.

The next largest is the 11th circuit, which is Florida, Georgia, and Alabama: 33 million people.

I can't find how many cases were appealed from the 9th Circuit that the Supreme Court declined to hear, nor how many cases were decided by the 9th Circuit and not appealed.

It appears that there were 47,000 cases appealed to all circuit courts last year. How many were decided? No idea.

But I think it's a safe estimate to say that less than 5% of the 9th Circuit's decisions are overturned by the Supreme Court.

 

 

Of course they can only overturn the ones they hear, and when they do they are overturned at a high rate.  You are correct.  Perhaps I didn't state it clearly enough.  

The POINT was that the only way this ruling could be applied as a nation-wide precedent would be IF the SCOTUS were to hear and and affirm it, which is statistically unlikely.  

But thanks for your usual ridiculously windy response to a simple clarification provde your stable genious-ness. 

[N.E. Brigand]

6 minutes ago, TwoValves said:

Of course they can only overturn the ones they hear, and when they do they are overturned at a high rate.  You are correct.  Perhaps I didn't state it clearly enough.  

The POINT was that the only way this ruling could be applied as a nation-wide precedent would be IF the SCOTUS were to hear and and affirm it, which is statistically unlikely.  

But thanks for your usual ridiculously windy response to a simple clarification provide your stable genious-ness. 

Don't get me wrong. You made a good point.

(If I had just posted my first and last sentences, to say that 5% of fewer of the 9th Circuit's decisions are overturned, I'd probably get a lot of pushback. So I decided to preempt that.)

[skevinp]

Whether this decision is overturned by the Supreme Court will depend on its merits and not which circuit it comes from, so maybe we can get back on topic.