Karaoke Forums

Well it looks like all that advise from some others didn't work for Expressway Music in New York.

You will find the "advise from some others" on pg 4 of 19, Citation (1) at the bottom.

Here is Expressway's original motion:

http://www.scribd.com/doc/136363393/Mot ... ne-in-SDNY

Slep-Tone's counter claim for Trademark Infringement and Unfair Competition will move forward.

My favorite statement from the order, Pg 4 Par 1

"Expressway is the orgin of media- and format-shifted records, the presence of Slep-Tone's "SoundChoice" trademark is passing off Expressway's product as Slep-Tones."

Read the full order cited below as to not take any of this out of context.

http://docs.justia.com/cases/federal/di ... /402517/27

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-- Mark

I'd like to see a judge in a courtroom view a Sound Choice karaoke track played from a disc and then view one ripped and played from a computer and have him describe the differences and how he is confused by it to the point of a lawsuit....

I guess this point needs refreshing.

1. The track from the computer hard drive was not made by SC. (SC doesn't make tracks on hard drives.)

2. The track from the computer is marked with the SC trademarks, which indicate falsely (see above) that SC is the origin of the track.

3. Therefore, there is a likelihood of confusion based on the false designation of the origin of the computer-based track.

It is not a question of comparison track-for-track. It is a question of SC's trademark appearing on a track it did not physically make.

With all due respect, the confusion in this case can't exist without knowing the source from which the content is being played.

To Rick's point, I challenge anyone to do a blind test and determine whether a track is being played from a CD+G or from a computer.

This is not to say that I don't agree with Mr. Harrington on the overall issue, just that in 20 years I have never been confused about karaoke music in a bar. If I see discs then I assume original. If I see a computer, then I know it is not original (in the case of most vendors) and there is also a high probability that the music is pirated. But this is only because I am educated on the karaoke piracy issue. Your average karaoke singer these days probably assumes that a computer is the original source because that is the primary means of distributing ALL digital content these days. In fact, as time goes on, the confusion could arise from seeing a disc and wondering why the hell anyone still uses them.

-Chris

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-Chris

What a crock!!! I use my computer for MOST of my Karaoke. NOT ONE SINGLE song is pirated. I am tired of these assumptions about computer run shows!! My customers KNOW I buy my songs online. I have even shown some of them where I buy my stuff from. I use my SC from their discs, so someone like you could assume all you want, and it's not a true assumption. I'm sure there is plenty of pirating going on, though I don't believe it's anywhere near what Harrington and Slep say it is, BUT assuming a high probability that computer music is pirated is the EXACT reason why mistakes happen in investigations. You, Chris, would make a TERRIBLE inspector!! Please don't ever go to work for SC.

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I am the ONLY SANE 1 HERE

Please read what I wrote......let me break it down for you....

1) If I see a computer, then I know it is not original (in the case of most vendors)

if you are running from a computer, then the bulk of the content is probably ripped, which means it is not original (in the case of most vendors)

2) and there is also a high probability that the music is pirated.

Please. The vast majority of computer based karaoke shows are pirate shows. We all know this. Just because you aren't doesn't mean the guy around the corner is not a pirate. I don't know where you live but there are literally HUNDREDS of karaoke hosts/shows in the Greater Seattle metro area. I have been to a large number of the shows and some are obvious pirates (iRC open to karaoke xfer channels) some are less overt but no less obvious (boasting 100,000 plus tracks).

It is not a stretch by any means to assume a computer based host is a pirate until they can prove otherwise. I have been accused of pirating several times in the past couple of years because I am a) a computer host and b) have a massive song selection. It doesn't offend me and I don't take it personally because I know that is the stereotype.

I use my computer for ALL of my karaoke and I expect to be called a pirate......especially by the pirates.

-Chris

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-Chris

All of this is based on confusion in the market place, still the host or hostess is not making a product and trying to sell it as the original product. One of the elements needed to establish trademark infringement. Still to be safe just boycott the SC product, no SC no confusion.

Or just remove the Sound Choice logos and then you aren't trying to make anyone think that the tracks are Sound Choice tracks.

I have been associated with karaoke as a listener, singer and host since 1989 and I have never, not even for a second, thought that the host was somehow associated with the manufacturing or creation of the tracks being played. Furthermore I have never met or spoken with anyone, before during or after a karaoke show, that thought that the host was somehow associated with the creation of the tracks being played. How stupid would a judge have to be to think that someone could possibly be "confused"?

This is truly a stretch or your imagination, and the judges, Mr. Harrington. No one at any karaoke show gives any thought about the origin of the trademark, or content being displayed, they just want to sing, dance and listen. You and the judge have very vivid imaginations. I agree that your IP needs to paid for, and that display without ownership is illegal, but your above quote is laughable as a basis for suing.

This is not a win for either side yet, and is not a surprise of any sort.



Those are the rules. That’s just the way it works; it is part of the game.



You read the order and still presented your favorite part out of context:

It seems Slep-Tone's argument wasn't quite clear enough to the judge ("appears to argue"), yet they are given benefit of the doubt to try to make their case.

Here’s my favorite quote:


That quote makes it sound like the court understands that this is an “end run around the copyright laws” and that given the rules of procedure; it is not proper to dismiss the case at this time, but it may be properly dismissed at some future time.

Still no big deal.
For those who want to see an actual decision from the court on "media shifting" this is good news.

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KNOW THYSELF

First of all who would take the time to take a Georgia Brown, etc. song and insert SC logos just to "Confuse" the mostly drunken bar patrons? He is not selling them the song only allowing them to sing it.

Second of all I don't think that any "Pirate" would spend the time or really know how to do it, if he steals his music why bother?

The confusion claim is just a way for SC to insert another point into its Trade Mark suits.

Actually I don't even look at the trademarks when they come on the screen, I can tell if it's SC or not....If it's a song newer than 2009 I sure it's not SC.

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I like everyone when I first meet them. If you don't like me that's not my problem it's YOURS!
A stranger is a friend you haven't met yet

First, in regard to the OP: The Motion To Dismiss has been denied. However, substantiating and winning said case is still a world away.

Jim is trying to set a precedent. He bases the SC cases on a theory that may or may not get past a judge, and is flawed in practicality.

His theory is that any media shifted product in not original ( SC doesn't sell tracks on hard drives, but rather on disc only) even though the track may have been bought, paid for, and produced by the same source. In other words, even if you paid for your disc and ripped it, his theory is that the ripped disc is pirated- and therefore the user is subject to litigation- unless, of course, you are kind enough to pay SC one wy or another to "turn a blind eye".

While media shifting is still a gray area legally, I disagree that anyone who media shifts product that they paid for is a pirate (thief). On the one hand, media shifting itself has never been played out to a legal end in court. It could end up equated with downloads- or not. Virtually everything has yet to be seen regarding media shifting

However, no matter how you slice it, anyone who has paid for their product cannot- by definition- be considered a pirate (thief)- period.

If Jim were to be able to set this precedent- under the guise of another set of circumstances- it would be of great help for SC in regard to the cases that, at this point, are making them look silly, or per some Judges, a whole lot worse.

I disagree with paying of SC- either with an audit or a settlement- because while this may cause SC to "turn a blind eye" to what you are doing, it is legally worthless.

Let's pretend that Jim's theory is actually correct, and shifters are pirates. Now let's say that you get an audit and SC agrees (wink,wink) that all is well. If you ARE a pirate, or media shifting ends up being a no-no in the future, you are not protected from ANYTHING. A waste of time and money.

I would also remind folks that SC - or any other karaoke production company- CANNOT give permission to media shift anything but their logo and they CANNOT give usage permissions ( i.e. using for running a karaoke show). They can give permission for personal use only- that's it. This includes discs, BTW. Just a bit less liability using them than anything else.

Media shift or don't media shift- up to you- but NOT up to SC.

Tying in to the OP, I would suggest a bit of "wait and see" before doing any sort of Happy Dance. Mustn't forget the original case with SC as the defendant....Much bigger, much stronger...

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"No Contests, No Divas, Just A Good Time!"

" Disc based and loving it..."

I VERY much wish one of these media shift cases would go to a full trial with a jury, and the jury hand a verdict telling SC to stick their media shifting nonsense up their BUTTOCKS!!! That would end the audits, and the witch hunt against KJs who media shifted the music they PAID FOR!!!

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I am the ONLY SANE 1 HERE

That's precisely the point, and your statements above show exactly why there is confusion. The host is not merely "associated with" the manufacturing of the tracks being played. He is, in fact, the manufacturer of those tracks. He, not SC, was the one who caused his computer to read information from a disc (or, more frequently, from someone else's hard drive) and write his own version of that information to the hard drive. He then uses the hard drive HE CREATED to put on shows.

But it has SC's trademarks on those tracks.

If he uses the discs SC created, great. No problems at all.

If he gets SC's permission to make tracks, with appropriate controls (audit, obligation to report additional media-shifting, applying SC trademarks only to tracks copied from original SC media, etc.), that bear the SC trademarks, no problem.

But putting SC's trademarks on tracks he created, without permission, is trademark infringement.

Baloney !!!! The host or hostess is not making a product and then trying to sell it as original product, he or she is providing a service. For trademark infringement to attach all elements must be present, period.

15 USC § 1114(1):

Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
[...]
shall be liable in a civil action by the registrant for the remedies hereinafter provided.

15 USC § 1125(a)(1):

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,
[...]
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Keep trying.

That's all well and good Jim, but you couldn't even tag the Kandy Store with trademark infringement and they were selling preloaded hard drives. If you can't convince a judge and jury that all the elements of infringement did occur in a whole sale seller of hard product, how are you ever going to make it fly for a mom and pop single rig operator? They are not selling any hard product. The burden of proving damages is on the plaintiff, so far at worse that is the fair retail value of the product. At least according to the judge in Panama City Florida case, which you appealed and his settlement award was upheld. Here is one for you Jim 50% or more of my patrons bring their own discs which I play. If they should happen to give me a SC disc to play and your logo is displayed am I liable? If I don't promote SC in my advertising and I have no SC in my books, can I be held responsible for someone giving me a SC disc to play at the show?

If you are playing from original SC disc, you have nothing to worry about.

All parties in attendance at every karaoke show I've ever been at have been entertained regardless of method of display, and have never left the venue scratching their heads in a confused state as to whether it "was real or was it Memorex".

I realize legal jargon has many interpretations of commonly used words, but how could your idea of confused be so "confusing"? Now I'm confused and I'm not even at a karaoke show. Is it safe anywhere anymore? Please help me I just looked at a copy of a bill I made on my copier. I don't know which is real...... I'm freaking out! I need an IP lawyer.

Again, I want to state that it is illegal to use what you don't own, and when properly investigated, found to be NOT in compliance with MODERN practices of format shifting, then by all means take the legal path to recovery.

That is all we are interested in.