On 9/02/2010 10:37 PM, The Raven wrote:
> "Sylvia Else" wrote in message
> news:00507706$0$28536$c3e8da3@news.astraweb.com...
>> On 9/02/2010 9:44 PM, The Raven wrote:
>>> "Sylvia Else" wrote in message
>>> news:00ed0d8f$0$23811$c3e8da3@news.astraweb.com...
>>>> On 9/02/2010 7:42 PM, The Raven wrote:
>>>>> "Sylvia Else" wrote in message
>>>>> news:0008c5e8$0$2661$c3e8da3@news.astraweb.com...
>>>>>> On 9/02/2010 1:53 PM, Ian Galbraith wrote:
>>>>>>> On Mon, 08 Feb 2010 18:13:11 +1100, Sylvia Else wrote:
>>>>>>>
>>>>>>>> On 8/02/2010 6:04 PM, Ian Galbraith wrote:
>>>>>>>>> On Sat, 06 Feb 2010 15:14:06 +0800, Neil Gerace wrote:
>>>>>>>>>
>>>>>>>>>> Evan wrote:
>>>>>>>>>>
>>>>>>>>>>> It absolutely obvious that this Federal Court judge has no idea
>>>>>>>>>>> about
>>>>>>>>>>> fair-use or anything faintly to do with performing music.
>>>>>>>>>>
>>>>>>>>>> Use of someone else's work, without an acknowledgement of one
>>>>>>>>>> source,
>>>>>>>>>> is plagiarism - isn't it?
>>>>>>>>>
>>>>>>>>> He used some similar notes, its clearly not plagiarism, they don't
>>>>>>>>> sound
>>>>>>>>> the same. There are a ton of songs that uses riffs and melodies
>>>>>>>>> that
>>>>>>>>> are
>>>>>>>>> quite clearly taken from others. The legal action is a joke.
>>>>>>>
>>>>>>>> From the judgement
>>>>>>>>
>>>>>>>> "161 But perhaps the clearest illustration of the objective
>>>>>>>> similarity
>>>>>>>> is to be found in Mr Hay¢s frank admission of a causal connection
>>>>>>>> between the two melodies and the fact that he sang the relevant bars
>>>>>>>> of
>>>>>>>> Kookaburra when performing Down Under at a number of concerts over a
>>>>>>>> period of time from about 2002."
>>>>>>>>
>>>>>>>> That is, the fact that the riff was copied from "Kookaburra" was
>>>>>>>> conceded.
>>>>>>>
>>>>>>> Yeah but its not a direct copy of the exact melody. Like I said they
>>>>>>> didn't do anything difference to 1000s of other bands. Maybe they
>>>>>>> were
>>>>>>> stupid to admit it but it doesn't make the legal action any less of a
>>>>>>> money grubbing joke
>>>>>>>
>>>>>>>
>>>>>>
>>>>>> It doesn't have to be a copy of the whole song to be infringing. The
>>>>>> legal
>>>>>> issue is whether it's a copy of a substantial part. The judgement goes
>>>>>> into some detail about this, and the conclusion is that it is a copy
>>>>>> of
>>>>>> a
>>>>>> substantial part.
>>>>>
>>>>> OK, but if the infringing started 25+ years ago and the case only
>>>>> recently
>>>>> (not sure, perhaps 8 years) then why didn't the copyright holder act
>>>>> the
>>>>> second the song came out? It might be argued they delayed challenging
>>>>> it
>>>>> until they realised how much profit was being generated.
>>>>
>>>> It appears that the copyright holder didn't realise until relatively
>>>> recently that their copyright was being infringed.
>>>
>>> That's very hard to believe. In which case they have failed to protect
>>> their
>>> own work and thus should only be eligible for royalties from the time the
>>> legal proceedings started.
>>
>> How is a person to protect their work if they are unaware of any
>> infringments? Exactly what are they meant to do?
>
> I question the probability of anyone living in Australia for at least the
> last 10 years NOT having heard or knowing this song.
>
>>
>>>
>>>>
>>>>> This brings me back to: If you didn't raise the infringment within a
>>>>> reasonable timeframe, you can't expect royalties to be backdated to the
>>>>> time
>>>>> of said infringement? With trademarks (admittedly a slightly different
>>>>> issue) a failure to protect your trademark means you miss out on crying
>>>>> foul....
>>>>
>>>> But in any case, it's not reasonable to have expected them to notice
>>>> before Down Under had received significant success.
>>>
>>> Umm, unless you haven't been in Australia since the 1980's you'd have to
>>> be
>>> an absolute hermit not to know of this song.
>>>
>>>> Prior to that, there's every chance they'd never have heard Down Under.
>>>
>>> Bullshit.
>>
>> Always a compelling argument.
>>
>>> Every American I've met knows the song so to suggest someone in
>>> Australia is ignorant of it is rubbish.
>>
>> I think you're missing the point. I'm not saying that the success was
>> recent, only that the copyright holder would be unlikely to become aware
>> of the infringement prior to point at which the song became successful.
>
> The song was successful in 1984 (or whatever) thus it's incredibly unlikely
> they haven't been made aware of it by now.
>
>> In this particular instance, it appears they became aware much later.
>
> An appearance which seems highly unlikely.
>
>>
>>>
>>>> So at the point where they'd noticed, there would have had to be a
>>>> negotiation as to what was an appropriate proportion of the royalties.
>>>> The
>>>> fact that this case has reached court means that no such agreement has
>>>> been reached.
>>>
>>> The point is, the song has been out for 25+ years and anyone who has been
>>> in
>>> Australia any reasonable time would be familiar with the song. If any
>>> connection between the two songs were to be reasonably made, it shouldn't
>>> have taken decade(s) to establish.
>>
>> I have been in Australia since about 1985. I was not aware of the song
>> until it became an issue.
>
> Then you must live in a cave ;-)
>
>>
>>>
>>>> In the absence of an agreement, the copyright holder could reasonably be
>>>> expected to do nothing until the potential financial reward outweighed
>>>> the
>>>> financial risks of going to court.
>>>
>>> Thus they allow perceived damages to occur in the belief that will
>>> strengthen their chances of extorting royalities from the supposedly
>>> infringing song? I'd argue that a failure to take action where a supposed
>>> breach occurs diminishes any such claim.
>>>
>>>> It would be hugely wasteful if people had to litigate merely to protect
>>>> possible future interests, rather than to recover actual losses.
>>>
>>> So you let someone rip off your song, sit on your ass for 20 years, then
>>> start a legal claim when you determine the royalties are worth chasing?
>>
>> Why not? People shouldn't rip-off copyright material.
>
> The issue is twofold here:
>
> 1. The song was released in 1984ish, so if there was an association with
> another song it should have been made well before now.
> 2. If it was a 'rip-off' then why did the copyright holder wait so long to
> make a claim? One could argue they only made a claim because the song was
> successful and significant royalties were to be had....
>
>>>
>>>>
>>>> Note that the court has yet to decide how much the copyright holder
>>>> should
>>>> get.
>>>
>>> As far as I'm concerned, only a portion of the royalities arising after
>>> the
>>> legal proceding started. If they intentionally sat on their ass for years
>>> then they aren't entitled to that period.
>>
>> There's no evidence of intent. You're simply inferring it from a belief
>> that they must have been aware of the infringement earlier.
>
> It's hard to believe they weren't aware of it, given the majority of
> Australians born since the songs release would easily recognise it. To imply
> they didn't know of it suggest they didn't make the association with their
> own copyrighted material. If an author can't identify a copyright
> infringement of their own material, within a reasonable timeframe, it's hard
> to claim any infringement....
>
>
>
There is a limitation period in the Copyright Act
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s134.html
Given that, any intentional delay on the part of the copyright holder is
merely depriving them of compensation. It seems an unlikely course of
action.
Sylvia. |
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