Judge: Appropriation of songs is not infringement.
Or, Singing a song is worse than theft of the song?

By Rafael Venegas

Guillermo Venegas Lloveras was a relatively little known composer outside his native Puerto Rico. He died in 1993. Those who knew him and his music considered him one of the great composers of his time. This web site dedicated to him has more information. I'm his son and executive director of Guillermo Venegas Lloveras Inc.
As the world and the press discusses whether downloading of songs is or isn't theft or copyright infringement and kids are threatened with infringement lawsuits by the record companies through RIAA, a little known case where two music publishers and one performance rights organization were sued will surely create a commotion in the music business and in legal circles in the days ahead.

The companies we sued were Latin American Music Company, a publisher, ACEMLA de Puerto Rico, a performance rights company, and Peermusic International Corporation, a music publisher.

The first two companies are managed and owned by the same persons and are widely known together as ACEMLA. Here, I'll center on ACEMLA issues, leaving the Peermusic issues, equally disturbing, for another day. Anyone wishing details on the Peermusic part of the case can visit our web page.

During a trial which ended in December, 2003, it was proved that ACEMLA illegally claimed the ownerships rights of hundreds of songs composed by Venegas.

Five months later, Judge Jose A. Fuste, the president of the court, issued a verdict: ACEMLA committed a minor infringement only with only one song infringed and not the hundreds as claimed by the plaintiffs, Guillermo Venegas Lloveras Inc.

We appealed and a judgment was issued on September 16, 2005 by the First Circuit of Appeals (Boston). The court agreed with the previous District Court decision, that the appropriation of songs, the illegal copyright registrations of 80 songs, the illegal blanket licensing of the hundreds of songs to radio stations, the licensing of 16 records of which over five million records were produced (the royalties were paid to the "illegal" publisher, ACEMLA) is not infringement.

As to ACEMLA, the court said actual and direct performances and copying was required to prove infringement and such performances and copying was not proved by plaintiffs, even though ACEMLA admitted licensing radio stations for profit and licensing many CDs, including many CDs containing my father's material, produced by a Sony-Sonolux joint venture and sold by Sony.

Incredibly, the judge found no infringement on the production of 16 illegally licensed Sony-Sonolux joint venture CDs even though another judge on another case (Venegas vs. Sonolux, February, 2003) had found the CDs to have infringed our rights and awarded us a damage judgment of 1.6 million dollars. While the judgment was later reduced to $200,000 (a third of what the unpaid royalties would have been) we have yet to collect any money, because, we guess, the Federal District Court of Puerto Rico is too busy.

This is one of the several parts that are hard to believe:

The 16 CDs infringed our rights per the District court but ACEMLA, who illegally licensed the CDs and who was paid the royalties, did not infringe, says Fuste, because we presented no proof that the CDs were actually produced.

However, more than five million records were produced, which is why we were awarded the $1.6 million dollars in damages by the very same District Court..

Another hard part to believe is that Fuste says a song was presented on a television program for which ACEMLA was paid many thousands of dollars for the performance, but then contradicts himself (the judge that is) in another part of his very long opinion of 74 pages by saying no proof was presented that the actual performance was made.

The show was the first, in 1993, of what has become a tradition in Purto Rico at Christmas time, the yearly Banco Popular Special. The song Genesis was performed was by Lucecita, our "National voice", who won the the first widely broadcast song festival in the world, the First Latin Song Festival, in Mexico City, 1969, with this very song.

The program is reputed to be one of the most widely seen in local television history, and the first really expensive musical production Puerto Rico television history. The song by Guillermo Venegas (Genesis) was a highlight.

But Judge Fuste says the song was performed and was not performed in the same opinion.

Another hard part to believe is that ACEMLA copyright registered 80 if our songs as if they were the owners when in fact they were not, as confirmed by the judge in his opinion.

It's incredible that music publishers are saying downloading a song is infringement while judges are nonchalant about the theft of actual song ownership. The press has said nothing of our case, a strange thing considering that my father was locally very famous and his music is very well known.

The district court decided that illegal authorization (licensing) was not infringement. But there is contradiction in the Circuit Court decision.

In another lawsuit involving the same publishers, Peermusic vs ACEMLA where Peermusic alleged ACEMLA appropriated their songs, Judge Perez-Gimenez decided ACEMLA infringed the songs of Peermusic by merely having Peermusic owned songs in the ACEMLA song catalog without Peermusic’s authorization.

It is indeed strange that the same Appeals Court (First District) decided previously on another case, STORAGE TECHNOLOGY CORPORATION, Plaintiff-Appellee, v CUSTOM HARDWARE ENGINEERING & CONSULTING, INC: "A copyright owner alleging a violation of section 1201(a) consequently must prove that the circumvention of the technological measure either infringes or facilitates infringing a right protected by the Copyright Act. Id. at 1203."

The meaning is clear: Facilitating infringement is infringement even if no actual infringement has been proved. Facilitating suffices.

As we've seen, the District Court of Puerto Rico contradicts itself on the question of authorization only (is it infringement?) while the Appeals Court agrees in our case that appropriation and authorization alone is not infringement, while in another case it says that facilitating infringement alone is infringement.

All in all, ACEMLA has been ordered to pay us an award of $16,000 from themore than $240,000 (current value, the admitted income of ACEMLA was $27,000 over six years ago) ACEMLA received in illegal royalty payments that we know of and are documented in the Fuste opinion.

In other words, the ACEMLA gets to keep most ($224,000) of the illegally earned money.

Previously, in the same District Court, a singer-composer named Glenn Monroig was awarded damages of over $7,000,000 after one of his songs was used by a record company without a license, and in the process they changed one word.

That decision, which was never overturned, gave the songwriter 437 time more in damages than we got ($16,000) for the infringement of and hijacking for eight years of all our 500 or so songs.

We plan to ask the Appeals Court to reconsider their judgment because of the above discrepancies and others not presented here.

I hope the copyright gurus out there can take a look and maybe even someone can explain this.

Rafael Venegas
http://www.gvenegas.com