The Appeal - Not one of the judge's error overturnedVenegas vs. Peermusic / Venegas vs. ACEMLA
For comparison see: Curet vs ACEMLA.
Appeal related documents:
Venegas Appeal Brief of 12-22-04 - pdf
Appeal oral arguments of 5-5-05
Appeals Court Decision of 9-16-05
9-29-05 Venegas Appeal Rehearing Request-pdf (request was denied)
There are many questions, such as:
- Why was not a single error, of the many (200+) and material errors (see examples below) committed by judge Jose A. Fusté in his opinion overturned on Appeal?
- Why were there no depositions made to any member of the LAMCO parties?
- Why was Mr. Negron, Peermusic's Puerto Rico office manager, the person most familiar with Peermusic's operation in Puerto Rico and the Peermusic-Venegas relation was never deposed?
- Why was the case changed from a jury case to a judge case?
- Why it was allowed the unification of the Venegas vs Peermusic lawsuit with the Venegas vs LAMCO parties lawsuit (two unrelated cases)?
- Why were the Venega's legal costs of $76,932 rejected by the court?
- Why was the Venegas's settlement offer never considered at all by Peermusic?
- Why a jury trial was changed to a judge trial against the wishes of the Venegas heirs?
Yes there are very clear explanations, but such explanations cannot be given at present. Please stay tuned.
* One explanation by Fusté is that Peermusic "timely" copyright registered them (as if that explained anything), when in fact no such Peermusic registrations were ever made for the songs freely given (we say) to Peermusic by Fuste..
Examples of some of Fusté's plain sight and material errors: 1. Fuste entirely overlook the main claim in the lawsuits, the damage to the market value to the music of Guillermo Venegas because defendants are claiming (illegally) the ownership of the music. See item 18 in the lawsuits (Peer lawsuit) (ACEMLA lawsuit). Item 18 in each of the lawsuits is not even discussed or mentioned in Fuste's Opinion and Order.
2. Peermusic's request assignments for songs from owners (plaintiffs) in 1997. Per Fuste the requested songs now (without any explanation) belong to Peermusic *
3. Fuste gives credence to a 1964 "letter" document signed by Guillermo Venegas which allegedly assigns 21 songs to Peermusic based on this document. Fuste ignores that the document was never signed by Peer, so there was never an agreement reached. Because Peermusic never signed the document, Peermusic never accepted any terms and reposnsibility over the managemnt of the songs, therefore the contract was not valid, common sense dictates. More 4. The dissapearing song performance. Fuste says Lucecita did not sing Genesis, even though Fuste himself states that Banco Popular paid ACEMLA $43,000 for the performance.
5. Fuste's basis for saying there was no infringement because Peermusic owned 10 songs was that Peer "timely registered" the songs, when in fact no such registrations were ever made by Peer. In essence, the judge invented non existing copyright registrations so as to save Peer from a copyright infringement claim for songs Peer had actually offered to buy from plaintiffs a few years earlier. The fact was that it was plaintiffs who presented valid copyright registrations for most of the 10 songs.
6. The stolen and non Venegas song Borracho Sentimental belongs to Peermusic because Venegas assigned it to Peermusic, even though Venegas did not compose the song and Fuste saw the proof.
7. Fuste decision: The state trial court also concluded that it had no jurisdiction over Plaintiffs’ copyright claims. In fact the court did make a decision, that the music belonged to the Venegas heirs. Fuste violated the Rooker-feldman Doctrine.
8. Fuste ignored the illegal licenses issued to Sonolux and others (for the songs Desde que te marchaste y No me digan cobarde) by ACEMLA and the millions of records illegally produced and the illegally collected (by ACEMLA-LAMCO) royalty money so as not to award actual damages of close to a million dollars to plaintiffs. Details: FUSTÉ OVERLOOKS THE $1,000,000 SONOLUX-LAMCO,,,,,
9. Fuste ignored the appropiation of hundreds of songs by ACEMLA and their illegal copyright registration and did not order the removal of said illegal registrations.
10. Fuste contradicted fellow judge in deciding what is infringement to decide against plaintiffs. Per Perez Gimenez having songs not owned in a catalog is infringement and damages must be awarded to the victim . Per Fuste it is not infringement and no award to plaintiffs is merited.
11. No cease and desist orders against infringers ACEMLA and Peer (so nothing has changed since). As of late 2006 Peer's infringements continue.
12. No damages awarded against Chavez for the infringement of owners exclusive distribution rights by illegally transferring copyrights she did not own to ACEMLA-LAMCO.
13. Fuste's basis for giving songs to Peermusic: Peer paid royalties (to GVL) when in fact Peer did not pay GVL or heirs.
14. Fuste's determination that the illegal licensing by ACEMLA to radio stations did not infringe plaintiff's exclusive right to distribute their music.
15. Fuste decision not to find conspiration for criminal copyright infringement by ACEMLA and Peer nor related damages.
16. Fuste ignored the Peermusic theft of songs "without the author suspecting"even though Fuste saw the letter by Peer stating they wanted the Venegas songs for copyright registration "without the author suspecting". Oh boy!!!
17. The absurd and low damage of award of $16,000 against ACEMLA when if fact ACEMLA stole all the Venegas songs from plaintiffs (and still has many of the stolen songs registered at the Copyright Office in their name as owners) and the absurd ond low and wrongly calculated award of $5,000 against Peermusic when in fact Peermusic earned much more money illegally from songs owned by plaintiffs and stole many songs "without the author suspecting". Combined ACEMLA and Permusic have destroyed plaintiff's ability to exploit their music for many year and to present, while plaintiff Venegas heirs have spent about $200,000 in legal expenses by three legal representations (Rafael Silva Almeyda / Benicio Sanchez Rivera and Hoglund/Pamias) to obtain a grand total of $21,000 in damages of which only $16,000 has been actually received. Oh boy!!!
18. The opinion of judge Fuste that Chavez owns a share of 8 renewal period songs, even though the local Supreme court had rejected the Chavez claim that she had rights given her by the Amercian Copyright Act and there is a doctrine (rule) that says that local court decisions can only be reviewed by the U.S. Supreme Court and Fuste is not that court. Perhaps Fuste believed the ACEMLA-LAMCO parties claim (lie) on various cases (shown here is claim on Banco Popular lawsuit) that what the local courts had decided was that the owneship of songs issued was not decided by the local courts, who had only decided (per the lie) the ownership of moral rights, while ignoring the existence of Res-Judicata.
19. Judge Fuste's own reversal and bias: Thes alleged 1964 Venegas to Peer letter of assignments does not assign any renewal rights. Yet Fuste reversed himself (in his prior decision awarding Chavez renewal rights because renewal rights were not mentioned in her agreement with the Venegas plaintiffs) by awarding Peermusic renewal rights even though these were not mentioned (or possibly given) in the 1964 letter. Evidently Fuste was always biased against plaintiffs!!!
20. Judge Fuste ignores the illegal license issued to Banco Popular by Peermusic for the use of the song Genesis in a 1993 television special, the one where Fuste said that Lucecita did not sing the song. Reason: To minimize reputation and infringement damages against Peermusic. Incredibly the words "Banco Popular" is never mentioned in any manner related to Peermusic and only one time related to LAMCO parties. Yet for the lesser important illegal license for a recording of the song Genesis, issued by Peermusic to BMG, the word "BMG" appears 16 times. 21. Judge Fuste declared that the song Tu bien lo sabes belongs to Peermusic, so as no to find any copyright infringement by Peemusic. A clear error. Fuste shoulds have known that this song belonged to plaintiffs because it entered renewal period after the death of the songwriter and that Peermusic stole the song after it entered renewal period in 1999 (by illegally claiming ownership). Peer ha never paid any royalties for this song in the 30+ years it has "owned" the song. 22. Judge Fuste ignores Peermusic copyright violations through ASCAP. As a result ASCAP continues to infringe the songs of Guillermo Venegas by licensing them as authorized by Peermusic. For example, the song Genesis is routinely performed on radio and other vanues as illegally licensed by ASCAP. Fuste did not do what was obviously required: Order the removal of the songs from the ASCAP catalog. As a matter of fact hed dod not even order the removal of songs from the ACEMLA catalaog. 23. Judge Fuste's order was disobeyed and the judge did nothing about it. Stated Fuste: "we do find that Defendant Chávez-Butler must account for any profits.." No such accounting (nor payment stemming from the accounting) was ever made to plaintiffs.
24. Judge Fuste found LAMCO to be an infringer but did not find Chavez a contributory infringer and thus Chavez did not have to pay damages to plaintiifs, even though she authorized the actual infringement (through ACEMLA-LAMCO) and profited from the infringement, the sale of videos produced by Banco Popular and the production of records by Sonolux and others).. Fuste ignored that knowingly failing to take steps to prevent infringement, while benefiting from said infringement, is grounds for contributory infringement (see A & M Records, Inc. v. Napster, Inc.).
Heath W. Hoglund / Samuel Pamias Portalatin for Venegas (plaintiffs)
Barry I. Slotnick / Francisco A. Besosa for Peermusic, Southern Music (defendants).
Jane Becker Whitaker / Angel N. Caro Padilla for ACEMLA, LAMCO, Chavez, Bernard (defendants)
Michael Boudin, Chief Judge,
Conrad Keefe Cyr, Senior Circuit Judge,
Jeffery R. Howard, Circuit Judge
The Rooker-Feldman doctrine as stated in two cases
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The doctrine: United States federal courts (except Supreme Court) have no jurisdiction to review of state court decisions if there is no legislation authorizing such review.