The group recently sent an invoice to the organizers of a dance event where only Creative Commons licenced music was played.

The organizers of the event had informed GEMA beforehand that they would only play royalty-free CC music, but the music rights group isn’t buying this ‘excuse’.

After inspecting the list of tracks that were played, GEMA sent a 200 euro invoice to the organizers. The group claims that some of the artists on the list are very familiar to “pseudonyms” that are also registered with GEMA.

Since German case law dictates that the burden of proof lies with the people who hosted the event, the organizers now have to prove that these artists are not associated with GEMA. This is a problem, since these netlabel artists are often hard to trace, and some are not even known publicly by their full names.

An absurd, unworkable and totally outdated situation.

The process may have made sense 15 years ago when nearly all artists were members of royalty agencies, but not anymore. Today there are hundreds of thousands of creators who publish their work under Creative Commons licenses, and many of them are musicians. Why should they have to prove that they are not related to a royalty collecting agency?

Unfortunately GEMA’s ‘mistake’ of claiming money from Creative Commons content is not an isolated incident. Just a few weeks ago the group demanded money from the nonprofit organization Musikpiraten for publishing a CD with Creative Commons licensed tracks.

At the time GEMA used the same arguments, but the claims turned out to be a mistake.

Michael Koch, singer and guitarist of “the.princess.and.the.pearl,” was one of the people who had to prove that he was not a member of GEMA. Kock cancelled his membership earlier because it did more harm than good.

“We don’t think highly of GEMA. I used to be a member, and our band actually lost a couple of gigs, because the organisers of small festivals were unable to afford the GEMA fees, of which hardly anything flows back to the band in terms of royalties,” he said.

“The fact that we, as non-members, must prove that our music has not been composed by a GEMA member, demonstrates that the society has too much power – and that it abuses it ruthlessly,” Koch added.

German Pirate Party chairman Christian Hufgard recently filed a complaint through which he hopes to reverse this backwards situation, and put the burden of proof on GEMA instead of the artists and organizers of music events.

Source: Music Rights Group Claims Money From Creative Commons Event

They target schools and kids’ community centers, charge charities for the singing of Christmas carols without a license, and even crash weddings if they have to.

While these copyright collectors are very strict in forcing their rules onto others, they often fail to live up to their own standards. This attitude was brilliantly exposed by the Belgian TV-show Basta when it exposed local music royalty collecting agency SABAM for charging people to pay non-existent artists.

This week, German royalty collecting agency GEMA made the headlines with a similar mistake. The group is claiming money from the nonprofit organization Musikpiraten, for releasing a compilation CD featuring the winners of its Creative Commons competition “Free! Music! Contest.”

Musikpiraten received a 350 euro invoice for five tracks listed on the CD, a false claim for which the pirates are considering filing a copyfraud complaint.

“GEMA’s claim that they hold these rights is demonstrably false. All artists have explicitly declared that they are neither members of GEMA nor of any foreign royalties collection society. The demands are therefore clearly a copyfraud,” Christian Hufgard, chairman of Musikpiraten explains.

The false claim appears to have been sent because some of the authors have names similar to registered GEMA members. But even then, the mere notion that the CD features work from a Creative Commons competition should have made GEMA reconsider their claim. That didn’t happen though.

According to the Musikpiraten chairman, GEMA and other royalty collectors simply assume that all artists fall under their wings. This is an outdated assumption, especially in the digital era where many artists allow people to share and redistribute their work.

“Internet portals like Jamendo.com with more than 52,000 albums published under Creative Commons license are a proof that the principle of ‘all rights reserved’ is outdated. If an artist verifies to us or to another publisher that he or she is not a member of GEMA, this certainly must have more weight than the blanket assumption that every author is a member of GEMA or a similar society,” Hufgard says.

This is not the first time that a royalty collection agency has filed a false copyright claim, and some artists have even cancelled their membership because they do more harm than good. Michael Koch, singer and guitarist of “the.princess.and.the.pearl,” one of the bands who GEMA falsely claimed royalties for, is one of them.

“We don’t think highly of GEMA. I used to be a member, and our band actually lost a couple of gigs, because the organisers of small festivals were unable to afford the GEMA fees, of which hardly anything flows back to the band in terms of royalties,” he says.

“The fact that we, as non-members, must prove that our music has not been composed by a GEMA member, demonstrates that the society has too much power – and that it abuses it ruthlessly,” Koch adds.

A testament to the ruthless stance of GEMA is the fact that they didn’t immediately send a credit note when the mistake was pointed out to them. Instead, the royalty collecting agency suggested that the artists probably forgot to register the tracks with GEMA, and they asked Musikpiraten to convince them that the identical names are a pure coincidence.

Source: Music Royalty Collectors Accused of Copyfraud

On 19 December 2006, performing rights group GEMA, which handles the copyrights of more than 1 million rightsholders worldwide, filed for an injunction against UseNeXT. GEMA had earlier leveled accusations at UseNeXT’s advertising in which it said, among other things, the company claimed to offer 1 million MP3s through its service.

“[UseNeXT] advertised its fee-based access with unambiguous references to illegal exchange platforms. In particular it publicized the anonymity, speed and security of access to contents available on Usenet,” GEMA said in a statement, adding: “On top of that, the service also offers special, perfected search software that makes it easier to locate and manage musical works and other contents protected by copyright.”

On 18 January 2007, the Hamburg District Court issued a preliminary injunction against UseNeXT’s operators, which included instructions for it to change the way in which it advertised its product and barring it from providing musical works from GEMA’s repertoire. UseNeXT objected to the decision and disputed that it had ever encouraged subscribers to download copyright works, arguing that its use of the terms ‘unfiltered’ and ‘anonymous’ related to features inherent in the Usenet system.

On 17 February 2010, the Hamburg District Court handed down a preliminary injunction against UseNeXT which bars the service from offering a sample 100 musical works to which GEMA administers the copyright. The injunction also states that UseNeXT must go further than simply modifying its advertising in order to protect GEMA’s copyrights.

Although not necessarily liable for infringements, the Court said that Usenet providers would have to take responsibility for the services and environments they provide.

In a statement, GEMA said that the Court of Hamburg’s decision represents expanded liabilities for Usenet providers which go further than regulating their approach to advertising, but also apply when modified advertising proves insufficient to protect rights holders.

“The adoption of the preliminary injunction is a success in our commitment to the protection of copyright,” said Dr. Harald Heker, Chief Executive Officer of GEMA. “Second, the ruling also represents a further important step towards a comprehensive responsibility of the Usenet service operator for its offer.”

At this stage it’s unclear how UseNeXT will choose to comply with the injunction. Unlike services such as Rapidshare that operate their own servers and actually store content, UseNeXT are a reseller of the Highwinds Usenet service. UseNeXT does not store any content, Highwinds do.

UseNeXT used to offer a search engine and software interface to access Usenet, so conceivably something could’ve been implemented there to bar access to the GEMA titles mentioned in the injunction. However, recent changes to their service means they are no longer offering those solutions but suggesting the use of 3rd party software, with one particular solution from Tangysoft up front.

Nevertheless, the Court said that UseNeXT is responsible for the service it’s re-selling so the company will have to find an answer somehow. Many Usenet providers are already working with rights holders to automate the removal of content, so solutions are available. How quickly and comprehensively UseNeXT acts will remain to be seen.

Source: Music Group Gets Court Injunction Against UseNeXT

Rapidshare was also ordered to delete any and all of those same tracks from its servers and ensure that they are not uploaded again by users. Previously Rapidshare had been using file hashes to recognize tracks that were already removed after requests from GEMA, to ensure that they weren’t uploaded again. The court decided that the technique used was ineffective.

The court found Rapidshare guilty of breaches of copyright law and estimated the value of the tracks at €24 million ($34 million).

“The decision of the Hamburg Regional Court is a milestone in GEMA’s fight against the illegal use of musical works on the Internet,” said Dr. Harald Heker, Chief Executive Officer of GEMA. “We are confident that in this way we will be able to reduce the illegal use of the GEMA repertoire on the Internet to a negligible level,” he added.

Understandably, Rapidshare sought to downplay the ruling. Bobby Chang, COO of RapidShare, Switzerland, said: “We do not consider the court’s decision to be a breakthrough. As other proceedings in similar disputes with GEMA have shown, there is considerable disparity amongst the individual courts in some cases.”

Noting that the courts of appeal “tend to restrict the scope of the decisions made by the lower courts,” Chang said it would make more sense to offer music fans the right products and services at the right price to “open up a new source of income for music-markets on the Internet.”

Update: We initially reported that Rapidshare was fined $34 million on the back of this report. This information is wrong, the court only stated that the value of the tracks was estimated at $34 million. The article is updated accordingly and we’re sorry for the confusion.

Source: Court Orders Rapidshare To Proactively Filter Content

Almost exactly 1 year ago, P2PBlog reported that the German rights organization GEMA had gained a preliminary injunction against Rapidshare which ordered the company to stop hosting and distributing titles which GEMA represent.

Rapidshare made an appeal – but lost. The court decided that Rapidshare should be forced to monitor all uploads which infringed on GEMA’s copyright – a feat which the company said was impossible.

At the time, GEMA boss Dr. Harald Heker said that the Court’s decision shows that it’s not down to the rights holders to police commercial outfits such as Rapidshare for their copyright works. He went on to say that he felt that the decision would send a major signal to all file-hosting sites where copyright works are used to generate revenue for themselves.

Then in April 2007 it was reported that Rapidshare was fighting back, suing GEMA in response – with the aim of clarifying the legal position for file-hosting sites.

Now, rumors circulating on the web indicate that Rapidshare was shut down. Quite a few sites reported the news but this situation does not appear to be true. Rapidshare’s Wiki page is now closed due to vandalism which is believed to have carried erroneous information which contributed to the confusion.

According to a report, a Rapidshare technician said: “There are rumors concerning attacks made on the Rapidshare.com servers. There are also rumors that Rapidshare has been shut down by a court order. These rumors are false. We would like to apologize to our users and inform them that no data has been lost. There have been some hardware issues as a result of high bandwidth and server overload. We are doing our very best to resolve the hardware issues, and users should expect uptime by midnight tonight (GMT)”

There is no doubt that Rapidshare stores millions of files – including lots of music. The operators of Rapidshare claim they have no idea what material they store on their servers and are in no postion (much like a regular ISP) to monitor or police the content. The users upload the content, they say, and as such, it’s out of their control.

However, the injunctions issued by the District Court in Cologne indicate that Rapidshare’s liability for such infringements still exist as they were carried out during the course of Rapidshare’s business. GEMA head, Harald Heker said at the time: “The mere circumstance of shifting acts of use to users and the purported inability of the operator to control content do not relieve the operator of a service from the copyright liability he/she/it possesses for the content made available for download from the operator’s website(s).”

In the meantime, Rapidshare.com and Rapidshare.de continue to operate.

This article has been updated

Source: Music Industry Got An Injunction Against Rapidshare in 2007, Site Not Shut Down