Click here for downloadable pdf file.… Read the full article

Copyright Infringement? Peloton Punches Back (weakly) With Antitrust

Can a trade association negotiate sales or licenses on behalf of its members? Can it tell members, “don’t negotiate individually with a specific purchaser, and if you are already in negotiations with that purchaser cut them off and let us negotiate on behalf of you and other members”? At what point does this conduct become an antitrust violation? 

These are the issues raised in a lawsuit between Peloton Interactive, Inc. on the one hand, and a group of music publishers and the National Music Publishers Association, Inc. (NMPA) on the other.

Peloton and Music Licensing. Peloton sells high-end, in-home stationary bicycles. An important feature of Peloton’s service is music-backed, instructor-led workout classes streamed to users via a built-in video screen. Some of these classes are broadcast live, and many are recorded and accessed on-demand.

Peloton doesn’t own its music, instead Peloton instructors create their playlists using popular recordings drawn from Peloton’s commercial music library.Read the full article

Ed Sheeran Should Settle “Lets Get It On”

by Lee Gesmer on April 24, 2019

Ed Sheeran Should Settle "Lets Get It On"

It looks like the music copyright world is facing another high-profile infringement trial. This time the songs at issue are Marvin Gaye’s 1973 “Get Lets it On” and Ed Sheeran’s 2014 “Thinking Out Loud.” On January 2, 2019, a federal judge denied Sheeran’s motion for summary judgment in this case. Absent a settlement, the case will proceed to trial in federal court in New York.

This case raises some of the same questions that were at issue in the two cases decided recently by the Ninth Circuit – the Blurred Lines case (where the Ninth Circuit upheld a jury finding of infringement of another Marvin Gaye song), and the Led Zeppelin/Spirit Stairway to Heaven case, where the Ninth Circuit reversed a judgment for Led Zeppelin and remanded the case for a second trial. See Blurred Lines At The Ninth Circuit and Led Zeppelin, Spirit and a Bustle at the Ninth Circuit.Read the full article

Litigation and Mental Models

by Lee Gesmer on February 6, 2019

Litigation and Mental Models

I’ve been reading about mental models. Everyone has these, whether they are aware of them or not. Doctors, engineers, sports coaches, electricians, architects, they all have them. Gary Kasparov has them for chess. Warren Buffett for investing. Nancy Pelosi for legislative politics. Bill Belichick for football (Tony Romo too). And, whether they are aware of it or not, lawyers have them.

Here’s Charlie Munger’s description of mental models:

you can’t really know anything if you just remember isolated facts and try and bang ’em back. If the facts don’t hang together on a latticework of theory, you don’t have them in a usable form.

You’ve got to have models in your head. And you’ve got to array your experience—both vicarious and direct—on this latticework of models. You may have noticed students who just try to remember and pound back what is remembered. Well, they fail in school and in life. You’ve got to hang experience on a latticework of models in your head.

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