Case 01cv1215 Appeal Court Oral Arguments
Case 1: Guillermo Venegas Lloveras Inc. vs Peermusic and Southern Music
Case 2: Guillermo Venegas Lloveras Inc. vs. ACEMLA-LAMCO, Luis Raul Bernard and Lucy Chavez Butler.
Where: Second Circuit Appeal Court (Boston) Date: May 5, 2005
12-22-04 Plaintiffs Appeal Brief (Acrobat file)
Oral Arguments (Red: Added author comments)
Judges: Chief Judge Hon. Michael Boudin, Hon. Conrad K. Cyr, Hon. Jeffrey R. Howard.
A sad commentary from the author about Peer and LAMCO lawyers and the courts.
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Heath W. Hoglund, for Plaintiff GVL Heirs (11 minutes and 20 seconds):
1. Authorization is infringement. Hoglund mentions that Peer sued LAMCO for Genesis while it had no rights to the song. Actually there were two songs in that litigation, Genesis and Borracho Sentimental and neither could be claimed by Peer. Peer does not even know who wrote the song Borracho Sentimental (a stolen and infringed song) but they have claimed ownership and the ownership was granted by Judge Fuste. Clearly it is an ABSURD proposition by Peer and ACEMLA-LAMCO that if someone licenses rights (song) IT HAS STOLEN and gets payment for that licenses when it does not own the rights, the rights of the owner were no infringed.
2. Renewal rights should be decided by probate/state law and the author should decide how his rights are split upon death. Else renewal rights should be split evenly among class of widow and children. Puerto Rico courts had already rejected (res judicata) that all rights claims by widow, including federal law granted rights she claimed.
3. Statutory damages should be higher so as to act as deterrent. Peer has repeatedly agreed that damages should as high as possible when their rights are violated, even for simple use, let alone theft of songs, but being on the other side of the infringement fence, here Peer has an opposite view.
Jane Becker Whitaker, for defendant ACEMLA-LAMCO (6 minutes and 38 seconds):
1. The the 6th. Circuit decided that 50 percent of renewal rights belong to widow. The 20 percent awarded by Judge Fuste should be reversed.
2. GVL assigned songs to LAMCO, on a LAMCO letterhead document as was testified by Bernard and Santana. Judge Fuste should be reversed (assign rights to LAMCO). The testimony of Bernard and Santana was "not uncontroverted". Actually no assignment was ever made to LAMCO by GVL, as the so called "proof" document says nothing about making an assignment or specifying the contractual terms of the alleged assignment. This is nothing more than a fraudulent use of a document by LAMCO. LAMCO has never reported any revenues to plaintiffs for the songs they allegedly acquired from Guillermo Venegas Lloveras even though LAMCO has acknowledged licensing a Charlie Zaa recording (to an affiliated business partner, Sonolux Inc.) that sold over 5 million copies. LAMCO has also acknowledged getting paid for the recordig. A 5 million copy CD generates royalties of about $400,000. Not a single cent was paid to plaintiffs.
3. Authorization is not infringement. No proof presented that Banco Popular used the song. Banco Popular said it did not play the song because of "the dispute". Even judge Fuste said that the song was used by bank Banco Popular, an obvious use for which LAMCO was paid very well. Banks do not have a habit of paying hundreds of thousands of dollars for the use of a song they did not use.
4. All of the above requires a reversal of Judge's Fuste award of $16,000. Why the LAMCO lawyer argued such an absurd proposition, that theft and infringement of songs merit no damage award, a new argument (not argued before) is a mystery.
Barry D. Slotnick, For defendant Peerc (8 minutes):
1. Plaintiffs make a unique claim, that not using a song is infringement."There is infringement by not performing a song". This nonsense is not what plaintiffs claim at all. Why the Peer lawyer delivered such a confusing and senseless argument is a mystery.
2. "In 1969 Peer disclaimed any right to license Genesis in Puerto Rico" in 1969. In 1993 Peer licensed the song to Banco Popular, not a way to disclaim it had no rights.. "To the extent there was a dispute in Puerto Rico, that dispute was non existent". The song "Genesis" was licensed by the plaintiffs to Banco Popular" after Peer notified plaintiffs it had no rights. This is the proof that the song was not blocked because of conflicting claims. Peer never notified plaintiffs of anything, not even that the registered the song in the name of plaintiffs in 1998. Plaintiffs never licensed Banco Popular. Why the Peer lawyer delivered "distorted" facts about abot the song Genesis is a mystery.
3. No evidence presented that the song Amor dulce was performed or authorized to be performed. Amor dulce was actually in BMI catalog on 2000 as a Peer song and that is authorization. Amor dulce, says Slotnik, went into renewal term 35 years ago. Actually it went into renewal in 1998, not 35 years before. There is no evidence of exploitation of the work Amor dulce. The work was licensed to Disco Hit, who still produces records of the song. Amor dulce earned $11.41. The Tito Lara recording of this song must have sold over 50,000 (conservatively speaking) in 50 years it has been on the market and should have generated over $2,500.00 (conservatively speaking), valued at over $5,000 at present. $11.41 would have been generated by the sale of less than 300 records, a pitiful figure for a recording that has been on sale for over 50 years and is of one of the most respected popular singers in the music history of Puerto Rico. Why the Peer lawyer delivered "distorted" facts regarding the song Amor dulce is a mystery. It is also a mystery why the Peer lawyer mentioned this song in view of the fact that the prior court decided (in error) that the song belonged to Peer and that Peer did not infringe the song.
BTW: Amor ducel was among the songs Peer wanted and included in its unconsummated offer to get song rights from the plaintiffs in 1997.
4. Statutory damages of five times revenues was awarded and plaintiffs say it should be over 50 times. Only a fraction of Peer revenues was awarded for multiple proven infringements (Banco Popular/ASCAP/BMG recording). Only a fraction of Peer infringement earnings (~$40,000 considering part of the income, the full amount is unknown) was awarded. Plaintiffs have never claimed it wanted over 50 times $1,000 or over $50,000. Why the Peer lawyer presents "distorted" facts regarding the revenues of the song Genesis is a mystery. Peer continues to infringe the song Genesis to this date by authorizing ASCAP (American Society of Composers) to authorize others to use the song thriugh its inclusion in the ASCAP repertoire (catalog). Incredibly, personal efforts by this author (the owner) to have the song Genesis removed from the ASCAP repertoire have been rejected by both ASCAP and by Peer.
5. There is no case where it has been held that authorization alone is infringement. In another case (Peer vs. LAMCO) has claimed the opposite, the authorization (or having songs in catalog) is infringement. The court in that case accepted the Peer argument. Why the Peer lawyer argues opposite views in different cases is a mystery. It is also a mystery why the Peer lawyer is concerned about "authorization alone" when in this case the issue is "theft and then authorization" by Peer, the theft being the claiming of ownership rights by Peer when such rights did not exist at all.
6. Peer is a small family held business, it was claimed. Actually Peer describes itself as "the world's largest independent music publisher" with 26 branch offices (and many corporations). Why the Peer lawyer presents "distorted" facts is a mystery. Peer, the so called small family business, claims that this case has already cost it one million dollars in legal expenses, a drop in the bucket for owner billionaire Ralph Peer II.
Heath W. Hoglund, for Plaintiff GVL Heirs (4 minutes and 33 seconds):
4. Prior to the copyright law, after death, the rights of authors were decide by state (probate) and by default, that law was adopted by copyright law. Actually that is the current state of affairs, since the copyright laws abolished renewal rights in 1976.
5. Award against LAMCO was for a mechanical rights violation, not performance rights as suggested by LAMCO attorney. Why LAMCO delivered an obvious lie to the court is a mystery.
6. Proof was presented during trial that Genesis was performed by Banco Popular, contrary to what was claimed by LAMCO attorney. Why the LAMCO lawyer delivered an obvious lie to the court, that the performance of Genesis was no proven, is a mystery.
7. Statutory damages should act as a deterrent. It is very strange that in a case where songs are stolen and also infringed the perpetrators want the minimum damages (or no damages at all as is the petition of LAMCO) allowed by the law.
8. The song Amor dulce was confirmed to be in the catalog the performance rights organization and songs are placed there only if they are performed. Why the Peer lawyer delivered obvious lies to the court regardong the song Amor dulce, is a mystery. The song Amor Dulce was one of the songs Peer was to get "without the author suspecting". The song also belongs to plaintiffs because of operation of law (renewal rights transfer). Additionally Peer requested an unconsumated assignment of the song from plaintiffs in 1997. Adttionally the plaintiffs terminated whatever assignmet was made to Peer in December, 2004. Strangely Peer still claims they own the song.
A sad commentary from the author about Peer and LAMCO lawyers and the courts.
This hearing is an additional assault of lawyers to the TRUTH. Here are the Peer and ACEMLA-LAMCO presenting a deceitful portrait to the court to get their customers off the hook. The dirty tricks. The simple facts are that Peer and ACEMLA "acquired" rights to songs in an illegal manner, licensed the rights to others, retained the ill gotten royalties and then want to be treated as innocent parties. It is even sadder that the courts tolerate this manner of acting of lawyers that destroy their reputation and that of the many decent and hard working lawyers that there are. Every song of Guillermo Venegas Lloveras stolen (or "acquired", as Peer call their acts of acquiring songs "without the author suspecting) by these two so called music publishers and their arguments boil down to that the song performances were no proven, as if singing a song was a crime while the theft of the song was not.
On 4-19-07 The Venegas siblings filed a complaint against ACEMLA attorney Ángel Caro Padilla at Puerto Rico Supreme Court. Mr. Caro is accused of unethical conduct by repeatedly lying in various courts and for conflict of interest in representing ACEMLA and an ACEMLA victim (the widow of Guillermo Venegas) at the same time and for involving himself in the inheritance matters of Guillermo Venegas while representing ACEMLA and for personally staging in court the robbery of 11 songs. As of 12-2-08 no decision has been made on the complaint by the Puerto Rico Supreme Court. All complaint documents can be found here (in Spanish).
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