This document and file is declared to be in the
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=== OVER 200
ERRORS BY JUDGE JOSE A. FUSTÉ ===
(including many fabricated "facts")
=== THE INFRINGER WANTS $1,000,0000 IN LAWYER FEES===
The judge: stealing a song for many years is not as bad as singing it once.
A story of greed, stupidity and arrogance by Peermusic and ACEMLA-LAMCO.
departure from any common-sense
understanding of the Copyright Act.
After the trial Peermusic
admission of what it denied at trial:
Peermusic acquired songs illegally
The Big Peermusic Lie
The Incredible Dissapearing Song - Believe It or Not
The Appeal - Not one of Fusté's errors overturned
THE MYSTERY OF THE ARDILA LULLE DAMAGE AWARD OF $1.6MILLION
The Peermusic Method for Getting Songs
Copyright Law: Violations are felonies
Biggest scam of all time: Renewal Rights Appropiation
THE COST OF GETTING $21,000 AWARDS: OVER $250,000
|Ralph Peer II, Chairmain of Peermusic and Chairman of the International Confederation of Music Publishers on copyright theft: "We need to send a clear message to venture capitalists, to advertisers and to others that there are high penalties for stealing the work of creators for their own commercial goals." The judge disagreed with Mr. Peer and favored by imposing very low penalties for the stealing from the creator and his heirs. Mr. peer is the son of Ralph Peer,|
Index 1. Introduction and Summary (Appeal) 2. Case data 3. Major errors by Judge José A. Fusté 4. Effects of errors and the COPYRIGHT TYRANNY 5. Fusté opinion and errors - Over 200 errors 6. Additional errors 7. Barry I. Slotnick: Plaintiffs had no right to information from Peermusic
8. The lost songs: 4 songs lost forever due to Peermusic irresponsibility
A. 1387: Get the songs "without the author suspecting"
B. 1997 Peermusic request to plaintiffs for assignment of all songs
C. 1515: A Stolen song: Borracho Sentimental
D. 1389: Llega la noche: A song that may not exist
E. Benicio Sanchez letter to Peermusic: was never answered
F. Rescission Theory
G. A revealing letter of deceit from Peermusic executive Angel I. Fonfrias
H. Songs that Peermusic cannot license or publish but own per Fusté
I. The Peermusic vs. ACEMLA lawsuit
J. ASCAP, BMI and Peermusic
K. The incredible Venegas song earning report for about 50 years
Here we will analyze the actions of one court the Puerto Rico Federal District Court, and one judge, José A. Fusté. Mr. Fusté clearly de-facto exonerated two companies that committed theft or fraud or deceit in a grand scale, directly or through hired gun employees.
One of the exonerated companies, Peermusic, precisely alleging that they were exonerated by Judge Fusté, claim that they prevailed in court and deserve that Plaintiffs, the children of the composer, pay them an alleged expense of $1,000,000 in lawyer fees.
Defendants in the case are "music publishers" that always allege that they work for the benefit of composers/songwriters. In reality, these so called music publishers hardly publish anything and are nothing more than companies dedicated to the taking away songs from composers and their heirs for their own and only benefit and who in the end justify their wrong and immoral actions through the use of legal technicalities, misleading information, hiding information and much perjury. The actions of the judge are a direct support of copyright tyranny and infringement. We will see how over 700 songs were stolen from the owners and exploited by the thief for over 6 years years and the victims were awarded no damages other than the return of $16,000 (without any legal expenses) paid by someone other than the thief infringer. Net payment by the infringer is zero dollars. The law sets a minimum of $700 per infringed song and double ($1,400) that when the infringement is intentional. A clear violation of the law by the judge, particularly when it is considered that theft and passing oneself as owner is infinitely more and severely damaging than the mere using of a song. On a different case, the same court awarded damages of $7.5 million dollars for the mere use of a song, as if some have more pull on the court than others. On a recent case, a federal district court judge ordered in Baltimore-based Legg Mason to pay $19.7 million for infringing on the copyright of a financial newsletter publisher. Legg Mason had decided that to reduce subscription costs, it distributed the newsletter internally through faxes and the computer network for about five years. The action by Legg Mason was not nealy as damaging as the actions against the GVL heirs, whose property was in fact stolen for many years and copyright registered.
Equity, or equal treatment of all in court, has been thrown out the door by this judge. While in the same court, for a "using" one song the infringement victim was awarded over 7 million dollars, the victims of massive theft of songs and/or earned royalties by two music publishers were simply given a slap in the wrist "punishment" of a $5,000 and $16,000, respectively, for copyright infringements that never ocuured . We should note that as of May, 2006, two years after the $16,000 sentence was issued, the so called LAMCO parties (ACEMLA, LAMCO, Luis Raul Bernard, Lucy Chavez, Jose A. Lacomba), have not paid the judgment and without submitting any evidence has claimed to the court that they are unable to pay. This in spite of the fact that they individually and collectively can easily raise the pittance award of $16,000. They, the LAMCO parties, have obviously lied to Judge Fuste because they know that they can do it.
In the annals of music and copyright history, this writer knows of no case where such a monumental and, may I add, crude scheme of fraud, deceit and theft as in the case we will be discussing:
Peermusic executives named Alberto Salinas and
Ángel Fonfrias many years ago. See this letter, where Mr.
Salinas tells Mr. Fonfrias
to get 16 songs "without the author suspecting".
Note: In 1999, a criminal complaint was filed against ACEMLA-LAMCO parties for the appropiation of the music. The complaint is currently (Jan. 2006) under investigation by the Puerto Rico Justice Department.
Note: The 10 songs that ACEMLA-LAMCO were not copyrighted by ACEMLA-LAMCO after the alleged assignment was made, nor royalties were ever reported or paid to any heir, further proof of the lie to the judge, who was apparently not interested in the details of a fraud by the party he favored.
The SCAM (fraud). By Peermusic executives who have totally violated the songwriter contracts that may have assigned songs to Peermusic. These executive never put the music to make money for the composer or the plaintiffs who did not get a single cent from Peermusic in over 10 years since the death of their composer father. No a single song assigned to Peermusic has ever been recorded as a result of a Peermusic promotion or license. Peermusic tells composers that it will try to make every song a hit (no kidding) but Peermusic does not even have the musical scores for many GVL songs, so it is in reality impossible to get a recording made. No one records "phantom" songs. Peermusic operation is nothing more than a scam to get song from composers so that Peermusic winds up with a huge catalog of songs so that if a composer promotes the songs Peermusic collects the royalties and for the purpose of extracting money from the performance licensing societies. The judge did not get it.
Then the final deceit and theft ocurred in the court in front of the judge, who doe not even mention or even hint that any theft or fraud or scam ocurred in his 77 page decision, one that makes the thieves the winners and the publisher mistreated victims the loosers.
For these reasons alone this case in of utmost importance and interest, particularly for composer, artists, copyright holders and anyone interested in copyright law.
When the composer is one of the great ones, Guillermo Venegas Lloveras (GVL), the case is the more interesting and important. All of this makes a very revealing story how the justice system works, or better yet, doesn't work in Puerto Rico, in federal court.
Here we will analyze just one part, a judge's opinion, of the saga of the children of Guillermo Venegas to save the music of their father. The opinion is of a judge that is the president of the Federal Court, district of Puerto Rico, José A. Fusté.
Up to this point the federal court in Puerto Rico is seen by some as a place of justice, where the justice not available in the corrupt Puerto Rico court system is not available. Others, still, see the federal court as as a place of oppression.
In our particular case, the court has acted as a place of oppression on a grand scale.
So far there is only a low court opinion. Should this opinion be allowed to substantially prevail, that is the death of Puerto Rico music, composers and artists, because most will simply not fight the "system".. it is too costly and reason means nothing.
The struggle against the the legal system, particularly the courts, cannot be won if it is is thoroughly against the artists and composer, who do not have the money to buy their way through as do others. For this reason the opinion analyzed here cannot be allowed to prevail.
The children of Guillermo Venegas have never done anything unethical, illegal, wrong or unreasonable related to the music of Guillermo Venegas. To save and protect this music, in 10 years of struggle against the estate executor (who stole every song), ACEMLA, who received the stolen property from the estate executor, and Peermusic, who stole additional songs (in Peer's own words. "without the author suspecting"), the children have spent over 10,000 hours, over $225,000 in legal fees and all that they have obtained from this is a future payment from this José A. Fusté judgment of $21,000. Also lost has been 10 years of their lives since they have not been able to promote the music due or to make a single cent from it due to the intervention of the publishers that have done much that is unethical, illegal, wrong, unreasonable and criminal and whom Jose A. Fusté has richly rewarded in his opinion.
Recently the same judge wrote in a column he writes for a Puerto Rico newspaper "Because of that under our judicial system in the majority of cases we are under the obligation to decide based on the constitution and not necessarily per state or federal laws." Clearly the purpose of the constitution regarding copyrights is to promote the creation of works of art, which in the case of music is created by composers, not music publishers. Clearly the creation of works music cannot be promoted if composers are more protected from the actual use of music than to the theft of music by thief publishers, performance and mechanical licensing organizations or are not protected at all and the publisher thieves are thoroughly protected. Clearly if a composer thinks about what Fusté decided, he may decide it is not worth the effort to create music if after the music is infringed criminally he or she has to prove actual use, which is very difficult or impossible in most instances while the theft of ownership, a simple thing to prove is of no value. That is precisely what Fusté has decided, proven theft means nothing, but because the actual performance (which obviously occurred) were not proven, the thief publisher comes out winning. So bad was Jose A. Fuste's opinion that we must laugh a little. Read this: The Incredible Dissapearing Song - Believe It or Not.
Then there is the....
No wonder music piracy is rampant and composers and their heirs are raped. See our PIRACY PAGE.
That is my opinion. You be the judge.
After the trial
After the trial the theft of additional songs by Peermusic has been discovered or realized:
These songs are in the Peermusic catalog. Peermusic did not present during the litigation any document to show how they acquired the songs. Llega la noche buena is credited by Peermusic has having been composed by Edmundo Disdier. Disdier is paid royalties for the song. The GVL heirs are currently trying again to get Peermusic's explanation as to how Peermusic acquired these songs, as was tried before the lawsuit without any response. How Peermusic will respond is not known bacause of their position that the heirs of GVL have no right to information as explained elsewhere.
Because Peermusic has followed a pattern of hiding documents (before and during the trial) it is expected that additional findings will be made.
A news story of January
On February 26, 2006 these facts were published by the US Justice Department about another case of conspiracy to commit criminal copyright infringement.
Arguments were made
through written brief on 12-4-04:
An interesting message
"The appeals Court validated the arguments of LAMCO and ACEMLA against the previous district (court) decision awarding a 20 percent to the widows...".
This is significant as follows:
a. LAMCO and ACEMLA had no
right to meddle in the widows claims or make claims
for her, so as to save their skin after stealing the
music of Guillermo Venegas.
The interference of ACEMLA-LAMCO in the affairs of the inheritance of Guillermo Venegas continues. Now (2008) an (former) ACEMLA-LAMCO lawyer (Attorney Willma Cadilla) represents the widow Chavez (who claims to be the executrix of the estate) in the lawsuit against her to force her to complete the distribution of the inheritance, after 13 years after the death of the songwriter. One of the main mysteries in the entire case of the inheritance of Guillermo Venegas and the infringement and theft of the copyrights of the heirs is why several lawyers and five or more judges in the state and federal courts have allowed the conflict-of-interest legal intermingled and utterly confusing representations of Chavez and ACEMLA-LAMCO by the same lawyers. No wonder widow and executrix Lucy Chavez has not sued ACEMLA-LAMCO for inducing her into appropiating subtantial parts (including all the music) of the inheritance of Guillermo Venegas,,, she is "defended" by ACEMLA-LAMCO lawyers.
|2. CASE DATA
A. Fusté Opinion of May 19, 2004 (PDF)
On October 2, 2006 Francisco Besosa was sworn as a federal judges in the scandal ridden court currently led by chief judge José A. Fusté, who said to the press: "Frank es sólido. Es una persona sólida" (Frank is solid, a solid person). "Frank" is the way Francisco Besosa is called by his friends.
questionable legal representation
(a partial list in no order of importance)
Fusté sided with the thieves, who
stole and distributed
the songs, royalties and the right to a livelyhood in
a grand scale. The law says this shall be the
"....shall be fined not more than $250,000 or imprisoned for not more than five years, or both, if the offense." While the evidence was seen by the judge, he did not refer the case to the Justice Department for processing criminal charges.
Also, see the following errors.
|Judge Fusté supports copyright tyranny
1. 2. Prior to the lawsuit, plaintiff's lawyer wrote to Peermusic in an attempt to get information from Peermusic regarding various issues. Peermusic never replied to the lawyer and this left only one option available: Sue Peermusic. Prior to this, Peermusic had a history of deceit to Plaintiffs and of not answering Plaintiff questions and letters or of giving false and/or mileading information, particularly in the area of how it was that Peermusic obtainned the songs of GVL. During trial it was learned that Peemusic "acquired" songs though a process described in a Peermusic letter a "without the author suspecting". Fusté does not mention this in his decision at all.
Peermusic stated during trial that plaintiffs, the heirs of the composer, had no right to get information or replies from Peermusic (except as a favor). But Peermusic alleges it had a contractual relation with GVL as publisher of his music. Plaintiffs are the successors of GVL, so plaintiffs have a contract with Peermusic, if Fusté's theories that Peermusic owns GVL songs are right. Clearly a contractor cannot have a relation with a counterpart if it is not willing to answer question or answer the mail of of the counterpart and whatever contract exists cannot be enforced by the "silent" party, the one that refuses to give information or answer letters or even pay royalties. Fusté says that a contract is still in place because of a whacky and wrong interpretation of statute of limitations (time available for complaining). From Fusté's opinion, we must conclude that Fusté supports contract tyranny. Fusté does not mention this in his decision at all.
2. ACEMLA-LAMCO stole GVL songs though the use of GVL's widow in a tyrannical manner. For many years this music publisher has prevented the owners (plaintiffs) from exploiting any GVL songs because in the music industry it is beleived that the owners are ACEMLA. ACEMLA has has even copyright registered many songs it had no right over. Fusté has appears to support ACEMLA-LAMCO by only imposing the absurd damage award of having to return $16,000 (paid by someone else, not the infringer who in the end pays nothing). In essence nothing comes out of the ACEMLA-LAMCO pocket. The message from Judge Fusté: You can steal, since there is nothing to loose. Fusté does not mention this in his decision at all.
Plaintiffs legal expenses not
Violations are felonies
recognizes the fact that Peermusic requested the
assignment of all songs in 1997 and that
plaintiffs said "no" and that this, legally
speaking, constituted an abandoment and
waiver of any and all previously claimed
rights. Therefore the Fusté decree that GVL
(and non GVL songs) songs belong to Peermusic
because GVL assigned them to Peermusic many years
before 1997 is a wrong conclusion. This wrong
conclusion means that Peermusic won and plaintiffs
suffered a huge loss of rights and money in the
lawsuit in legal expenses which Peermusic claims are
in the order of one million dollars.
In effect, in 1997, an implicit agreement was reached between Peermusic and the heirs: The songs rights belonged to the heirs, regardless of what ocurred before that moment.
A Peermusic executive admitted that Peermusic could not do any business with GVL songs after 1997 because plaintiffs rejected that assignment request made by Peermusic.
See: Additional stolen songs.
judges's decision, non GVL songs, such as Borracho
Sentimental belong to Peermusic because GVL assigned
them. This is wrong because GVL could not give
Peermusic a song he did not compose and GVL was not
a thief. Neither can a federal judge. And Peermusic
knew GVL did not compose or assign the song.
Note: Fusté awarded the song Borracho Sentimental to Peermusic without due process for the real owner.
A cynical joke: During the trial Peermusic's lawyer Barry Slotnick criticized and ridiculed plaintiffs Venegas (so as to influence the already biased judge?) for not removing a copyright registration after learning that Guillermo Venegas did not compose the song Borracho Sentimental. Plaintiffs had never registered the song. Additionlly, had plaintiffs registered the song Borracho sentimental it would have been because Peermusic, the thief of the song, had led plaintiffs to beleive that the song had been composed by GVL, through fake documentation! What a Joke!
Another cynical joke (or lawyer perjury?): During the trial Peermusic's lawyer Slotnick claimed that GVL songs made no money because the songs were no liked by the public. He forgot the minor detail that no song that was ever allegedly assigned to Peer by GVL was ever licensed to be recorded by Peermusic. Surely if no recordings are made, the non existent recording will not be liked. Surely Slotnick never heard the recordings that he said were not liked but that actually did not exist.
decision violates plaintiffs moral rights by
allowing Peermusic to continue saying that GVL wrote
Borracho Sentimental and possibly other songs for
which there is no proof (to plaintiffs) that GVL
wrote and GVL was not a thief, Same for
the song Mas Alla and others - See
document 1389. Also Fusté decreed that
Peermusic owned many songs which it cannot license to
others. See Appendix H.
bypassed a $70 million claim made against ACEMLA.
issued an absurd sentence, equity and deterrence.
ACEMLA-LAMCO and Luis Raul Bernard and parties
committed the worst copyright infringement in
history (theft of all GVL music) and walked away
with a mere restitution of $16,363.
The Legal Expenses defat of
The message by Fuste: Copyrights infringement pays.
Note: Fuste, in an obvious error, did not even declare that ACEMLA-LAMCO was an infringer, let alone an intentional infringer (intentional infringement forces the court to double the damages or award all infringer income because of the infringer's failure to produce deductible expenses).
Interestingly, no infringement (direct, vicarious or contributory) was found for defendants Chavez, Bernard or Lacomba and ACEMLA, which is a separate corporation and infringer from LAMCO. The Judge does not explain why he decided not to find these persons as infringers. The judge also ignored the lawyer conflict problem.
* The theory of equity states that everyone is treated equally and that is why the legal system is based on jurisprudence, a philosophy for the attainment of equity.
|Judge Fuste ignores document 1387 by
making no mention of it in the sentence. See
document 1387 below.
says that children of GVL have not pressed their
related claims of copyright ownership against
co-Defendants LAMCO and Chávez-Butler since
GVL’s death in 1993. This totally deviates from the
Fuste acknowledges that ACEMLA received in
$67,912 in royalties after licensing a song that
belonged to plaintiffs an infringement. Fuste
ignored this very important fact at time of
sentencing and awarding only $16,363.47 in
restitution to plaintiffs.
The judge sided with the thives.
If, as the Church says, actual use by the public must be shown to establish distribution, no one can expect a copyright holder to prove particular instances of use by the public when the proof is impossible to produce because the infringing library has not kept records of public use. To reiterate, a copyright holder should not be prejudiced in this manner, nor should an infringer benefit from its failure to keep records. In this case, the Church’s library did not record instances of public use of the Hotaling microfiche.
The judge: Stealing a song for many years is not as bad as singing it once.
further sided with the crooks and erred by adopting
the Peermusic and ACEMLA positions that illegally
having songs (illegally obtained from another,
original infringer, in the case of ACEMLA, who
obtained the songs from the widow who did not own
the songs) in their catalog (a fraudulent
claim of ownership) is not infringement and did not
reqire an award for damages for the damage done to
the market value of the song, as claimed in the
lawsuit (which obviously the judge
did not read). See
here, item 18.
But a judge of the same court where Judge Fuste is chief judge, Juan Perez Gimenez opinion of August 1, 2005 (on consolidated case # 96-2312, Peermusic vs. LAMCO) contradicts Judge Fuste. In the case before Judge Perez Gimenez Peermusic proclaimed that ACEMLA-LAMCO infringed the rights of Peer by having Peermusic owned songs in ACEMLA catalog. In that case, unlike this case, the court did not require proof of actual song performance as Fuste did in this case. Anyway, when there was overwhelming proof of performance, Fuste ignored it. See here, for a laugh.
[T]he LAMCO Parties left a not insignificant number of songs that did not belong to them in their catalogue, and although they claim that they were never licensed, this Court finds that it is enough that they were listed in the catalogue. The Court … now expressly holds that LAMCO’s failure to remove them from their catalogue constituted infringement.
Juge Perez Gimenez further stated:
"On August 14, 2001, the Court issued an Opinion and Order regarding the Peer Parties’ motion for summary judgment, and the LAMCO Parties’ cross-motion. The Court reviewed the claims and defenses of the parties, and found that the Peer Parties were entitled to a presumption of ownership. The Court noted the LAMCO Parties’ admission that they had left in their catalogue by accident nearly two hundred songs in which they had no interest, concluding that in all likelihood such acts qualified as infringement."
Juge Perez Gimenez further stated:
"The Court having adopted the Special Master’s Report and Recommendations regarding these songs, it now expressly holds that LAMCO’s failure to remove them from their catalogue constituted infringement."
Juge Perez Gimenez further stated:
"Having determined that the LAMCO Parties infringed on the Peer Parties’ copyrights, the Peer Parties have a right to recover damages. 17 U.S.C. § 504(a). They have requested minimum statutory damages in the amount of $750, as provided by 17 U.S.C. § 504(c), for each of the 457 works found by the Special Master to be owned by the Peer Parties."
Clearly no proof of actual copying or performaces were seen by the judge for each and every one of the 457 song claimed by Peermusic. This decision confirms what the judge said, that by merely having the songs in their catalog, LAMCO infringed each and all songs claimed by Peer.
Very interesting facts about this case's decisions by Judge Perez Gimenez:
1. Peermusic lawyers switched positions. In the Venegas vs Peer litigation, Peermusic legal representation argued that licensing a song for public performance cannot constitute infringement without direct evidence that the song was publicly performed. On the other hand, in the case before Judge Perez Gimenez, the same Peer legal representation took the contrary position, that authorization by inclusion in a licensed catalogue does constitute infringement. In each case, the judge favored the Peermusic positions even thought they were in contradiction. Clearly judicial bias. The consequenses of Judge Fuste declaring that listing in a catalog was not infringement was very damaging to plaintiffs, GVL children. A question that arises here is, will lawyers who argue plainly contradictory arguments, depending on the convenience of the moment while knowing they are wrong be sanctioned by the court?
2. Peer sued LAMCO alleging infringement of two alleged Guillermo Venegas songs: Genesis and Borracho Sentimental. Peer has no right to either song. Genesis because it belongs to the heir children of GVL (and the widow if the heir children do not prevail on appeal) and because the song Borracho Sentimental was not composed by Guillermo Venegas at all. In the opinion of Perez Gimenez no mention is made of these facts and the impression is given that the court (master) determined that Peer prevailed on their infringement claim for these songs.
3. Peer asked for and received minimum statutory damages of $750 per infringed song. This is very strange considering that part of the damages must go to the beneficial owners of the songs, if Peer does the reasonable thing of sharing lawsuit earnings with the beneficial owners. It is also strange that the damages were not doubled because the infringements were intentional. We must suspect here that the problem that Peer had was that the songs had a history of little or no earnings for beneficial owners of the infringed songs (due to mismanagement?), so actual losses were little or none nill and Peer did not want anyone to become aware of it's mismanagement.
So for the "appropriation" infringement of 418 songs damages of $323,500 ($750 per song) was awarded. As stated elsewhere for the "use" infringement of one song, this same court awarded damages of over $7.5 million in the Glenn Monroig case. Clearly the message of the court is that the mere usage of a song without a license is 1,000 times more damaging than the appropriation of a song when in fact it is the other way around. This may she some lifgt to the absurd sentence against ACEMLA and against Peer in our case.
The judge: Stealing a song for many years is not as bad as singing it once.
|72-4||Judge Fuste awards $0.00 to
plaintiffs for the loss of income, expenses, loss of
market, and many other losses that plaintiffs have
suffered. This is the result of the judge favoring
the defendant sides by awarding less than the
minimalist damages as required by law.
|77-15||Omission: Judge Fuste did not
order the obvious: 1) Peermusic to pay unpaid
royalties 2) ACEMLA to un-register songs illegally
registered at Copyright Office. 3. Peermusic to
identify the author of several songs where Peermusic
has no scores and it is not known who the composer
is. Judge Fuste, in an absurd decision, simply
decreed that these songs belong to Peer.
does not realize that the lawsuit against Peermusic
was filed because Peermusic refused to give
plaintiffs the requested information regarding
licenses issued and royalties collected. As a
matter of fact Judge Fuste hides the statement
made by Peermusic attorney Barry I. Slotnick
in closing arguments: Plaintiffs had no right to any
information from Peermusic. So Fuste, by being
silent on the issue condones a type tyranny, with
Peermusic being an absolute dictator that provoked a
Wrote Rafael Venegas to Peermusic on 10-20-04, when making requests for information about additional and probably stolen songs not covered in the trial as a resut of Peer's action of hiding documents:
"I will take Slotnick policy as a just an foolish remark about a policy that Mr. Slotnick invented for convenience at the trial, to fool the judge, since no sane person at any enterprise would ever say such a foolish thing. I imagine that no one at Peer really told that to Mr. Slotnick, that, although it was the real Peermusic policy. It would be so at odd with your detailed description of Peermusic as such an highly respected, altruistic and company that is benevolent toward composers. After all, people remember."
Note: Peer Attorney Barry Slonick is current president of the Copyright Society of the USA. His client get their copyrights without the author suspecting and witout the author's heirs having a right to know how the copyrights were obtained. Who would suspect!
recognizes that the fraudulent ACEMLA license to
Banco Popular was for only six songs. The he
contradicts himself elsewhere (page 74-19) by
stating that the license to Banco Popular it was for
the ACEMLA catalog of about 15,000 songs. Note: The
judge nor plaintiffs have seen the so called ACEMLA
On a separate lawsuit, Banco Popular may have to pay the $43,000 that were already paid to ACEMLA. The judge did not order the return of the money to Banco Popular.
Ignored by Judge Fuste:
Ignored by Judge Fuste:
|77-11||Judge Fuste finds
infringement by the GVL estate-inheritance executor
but does not award damages... and this is contrary to
The judge: Stealing a song for many years is not as bad as singing it once.
|36-1||Judge Fuste refused to
rescind the ownership of claims of ownership by
Peermusic - See RESCISSION
THEORY AND THE 14 ERRORS below.
Peermusic argument for rescission, included
here, states the to rescind a contract all
certain things must ocurr, and they all ocurred and
all were established in court:
did not see anything wrong in the absurd Peermusic
argument for rescission.
To understand the absurdity of judge Fuste's failure to rescind Peermusics assignments, if they existed at all. see our analysis of the opinion and order by judge Aida Delgado Colon in another case involving ACEMLA-LAMCO. In that case, because ACEMLA-LAMCO failed to properly report and account royalties the judge decided to rescind assignments made by songwriter Tite Curet to ACEMLA. Judge Delgado Colon says in the last page of the opinion and order:
|27-6||Judge says LAMCO
registered 11 songs. The fact is LAMCO illegally
registered 80 songs.
Note: Whatever copies of songs were included by ACEMLA-LAMCO in their copyright registration filings constituted infringement because the copies were not authorized by the owners of the rights, the plaintiffs. This infringement went unnoticed by the judge.
Note: Each of
the 80 songs (works) were infringed at least
once by three parties:
Strange: The judge did not consider the act of criminal copyright infringement (section Sec. 506. Criminal offenses, (e) False Representation) when material facts are stated wrong when applying for a copyright registration, as ACEMLA-LAMCO did when they registered the 80 songs.
|Judge fails to mention what
were his decisions regarding:
1. Lack of Peermusic permit to do business in Puerto Rico. This may have made all Peermusic contracts made in Puerto Rico illegal and void.
2. Legality of assignments made by GVL in Mexico to Peermusic affiliate. It was shown at trial that it was a requirement of consular signature on said contracts.
3. Legality of assignments made with fake composer signature. It was argued by plaintiffs that the copyright law required actual composer signatures for assignments.
4. Validity of power of attorney that did not meet the Puerto Rico (and New York) law requirements for issuing power of attorney. A problem too with the power of attorney was the intention of Peer to use the power for their benefit and not of the principal, the composer. This is contrary to New York law, which the contract says apply.
This is from a New York Sate docuemtn: Power of Attorney published by the office the Attorney General:
Powers of Attorney are only as good as the Agents who are appointed. Appointing a trustworthy person as an Agent is critical. Without a trustworthy Agent, a Power of Attorney becomes a dangerous legal instrument, and a threat to the Principal's best interests.
The Agent named in a Power of Attorney is your representative, not your "boss." As long as you have the legal capacity to make decisions, you can direct your Agent to do only those things that you want done.
The Agent is obligated to act in the best interests of the Principal, and to avoid any "self-dealing." Self-dealing is acting to further the selfish interests of the Agent, rather than the best interest of the Principal.
Here we ask a few
questions: Was Peer trustworthy? See
here: Without thee author suspecting. Was the
employee at Peer who was de-facto the agent with the
power of attorney trustworthy to the principal who
never met the agent?
5. The time and method of
using a power of
|7||Fuste gives credence to a 1964
"letter" document signed by Guillermo Venegas and
assigns rights to Peermusic based on this document.
Fuste ignores that the document was never signed by
Peer, so there was never an agreement reached.
Aha! there is even a copy - see here- that was never signed by GVL. Can anyone imagine GVL or anyone sending a letter to anyone without signing it? Of course not, because the fact is the GVL could never have written this letter, as he did not compose the named song "Borracho Sentimental" and possibly others no one knows anything about, such as "Mas alla" and "Llega la noche", songs appropiated from others or credited to the wrong composer by Peer..
Interesting Fuste Bias: This alleged 1964 Venegas to Peer letter of assignments does not assign any renewal rights. Yet Fuste reversed himself (in his 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).Evidently Fuste was always biased against plaintiffs!!!
|Fuste did not issue a single order to those found guilty of infringement (Peermusic and ACEMLA-LAMCO) to stop and desist of any additional infringement actions as the same court has done in other copyright infringement cases. As a result, the infringements continued well after the trial ended and as this note is being edited in July, 2006. For example, Genesis still in the ASCAP catalog as a peermusic owned song. See here about efforts to remove songs from ASCAP repertoire.|
|Peermusic stated that it
did not have to remove their registration from the
performance rights organization (such as BMI and ASCAP) catalogues
because that should or could have been done by
plaintiffs themselves. This is consistent with the
1997that plaintiffs were the owners of all the
songs previously in the Peermusic catalogue. Of
course, it is in contradiction with the Peermusic
position in the trial, thet the songs didnot belong to
plaintiffs and did belong to Peermusic.
Peermusic said it was easy to unregister the songs, at BMI or ASCAP, for example,
because the registration information was in the
Internet, a false fact, since not all songs that
are registered with these organizations are included in
the online databases of these organizations. Then, and
contradictorily, it argued that the registered songs
belonged to Peermusic at all times. Clearly if the
songs belonged to Peermusic as Peermusic argued, it was
legally wrong for the plaintiffs to have acted as
owners, to request the removal of the songs from the
performance rights organization catalogues. For
consistency with Peermusic's argument that plaintiffs
could have contacted the performance rights organization
to unregister the songs, the judge had to state that the
owners of the songs were the plaintiffs. The judge did
not, so he erred.
Note: In the opinion of this analyst if the plaintiffs had gone to BMI to unregister the GVL songs at BMI, BMI would have ignored plaintiffs just as the record company BMG (who, by the way, shares lawyers with Peer) ignored plaintiffs when advised by plaintiffs that plaintiffs owned the song Genesis and not Peermusic. BMG is still producing infringing records under authorization by Peermusic and Judge Fuste took no action to stop that infringement.
Interestingly BMG nor Peer has ever divulged to plaintiffs or to the judge how many infringing records have been manufactured by BMG and sold or where. Clearly an unsettled matter. Worse, yet: Per Fuste Peer's income from this ifringement is identical to their income from another but separate infringements. The two infringements are separated by about 7 years, one being the licensing for a television performance and sale of a video (Un Pueblo Que Canta) during 10 years and the other being the production of an unrelated CD - both of the same song by the same performer, Lucecita Benitez. INCREDIBLE. See here: BMG damages per Fuste.
Amazing: The judge did not realize that Peermusic was claiming that the heirs of GVL could have the songs removed from the repertoires of the performance organization such as BMI and ASCAP while contradictorily claiming they the owned the songs which would mean (id Peermusic had rights over the songs) that plaintiffs had no authority to have the songs removed. See update regarding removal from the ASCAP repertoire. The judge makes no mention in his opinion the Peermusic claim that the heirs of GVL could have gone to BMI to have the GVL songs remove, we believe to solve a huge problem for Peer, that they contracted themselves and committed perjury (See below).
Update: During seven week starting in February 25, 2005 plaintiffs have tried to have some songs it owns from the ASCAP repertoire. The efforts have not worked and no songs have been removed we estimate because Peermusic has not authorized or requested the removal. Clearly a Peermusic employee committed perjury during the trial. An incredible thing is that Peermusic itself has not taken the initiative to have the songs removed from the ASACAP and BMI repertoire after saying plaintiffs, the heirs of Guillermo Venegas, could have and should have done the removal themselves. No one has to be a brain surgeon to see the level of stupidity of Peermusic and how easily they deceived the court, a court that makes no mention, in its opinion, of the Peermusic claim that songs could have been removed by the plaintiffs while at the same time, incredibly, claiming that the plaintiffs were not the owners of the songs.
Judge Fusté erred by allowing two different, unrelated lawsuits to be combined as requested by Peermusic. In essence Peermusic chose the judge that was to see their case. In requesting the change in judge, Peermusic gave no valid reason but it stated that the two cases were identical (nothing is further from the truth) as to why the original judge assigned (Judge Consuelo Vargas de Cerezo) was inadequate for Peermusic and Judge Fusté was adequate or better. The lawsuits against Peermusic and ACEMLA parties were two very different lawsuits that did not depend on the same issues, the same facts, the same transactions, the same testimony, the same witnesses, the same evidence or the same discovery or any knd of concerted actions by defendants. As a result the case may have become too complex for the court to adequately grasp. The arrangement made by Judge Fusté created the condition where plaintiffs had as adversaries in the same case two music publishers that share many common interests and behavior on one hand and are alleged adversaries in another lawsuit (Peermusic vs. ACEMLA, where Peermusic alleges that ACEMLA illegally claims ownership of over 400 songs owned by Peermusic and ACEMLA has claimed that it has a right to own them because Peermusic did not pay royalties to the beneficial owners, the composers and the composer heirs).
The joinder (consolidation) of the two cases was made while the plaintiffs had no legal representation. As a result no opposition was made by defendants. Perfect timing by the now federal judge Besosa and wrong timing by Fusté.
The Peermusic lawyer who told Judge Fusté that the two cases were identical was local attorney and now judge Francisco A. Besosa (more about Besosa and his $1,000,000 absurd claim of lawyer fees), of the law firm Adsuar Muñiz Goyco & Besosa. In fact the two cases were different and unrelated.
Clearly under the Federal Rules such joinder was improper. The result of reamwork by judge Fuste and a now judge Besosa.
Says Rule 20 of the Federal Rules of Civil Procedure:
Permissive Joinder of Parties
Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if:Clearly the joining of two cases, as requested by Peer and executed by Judge Fuste was clearly wrong the joined parties (Peer and ACEMLA-LAMCO) were not involved in the same transactions or ocurrances.
In another federal
court case the judge defined the normal legal
reasons -indicia- for joinder:
Clearly this is a case of judge shopping (the term forum-shopping is used to describe the action of seeking the most favorable court whan a lawsuit is to be filed) by defendants Peermusic and attorney Besosa.
Strangely, the plaintiffs filed one lawsuit against two record producers, Sonolux and Sony for identical cause: Sale and distribution (in partnership by the two record companies) of the same records. All 4 conditions to allow joincer were met but the cases were not joined, as requested by plaintiffs on 3/7/02. Actually no decision or reply regarding the joiner request of plaintiffs was ever issued by the court. This has been very hurtful to defendants. Odd and inconsistent behavior by the court presided by Judge Fuste.
Also very strangely on 3-12-02 Fuste rejected (another error) a Sony request to have a Venegas vs Sony lawsuit combined with the Venegas vs ACEMLA-LAMCO lawsuit. The lawsuit against Sony was for the alleged infringement of songs belonging to GVL children that ACEMLA-LAMCO illegally licensed to Sony and Sonolux as (alleged) "owners" of the songs.
Note: The cases against Sony and Sonolux (see here for results) were filed in february 2001. The Sony case was terminated in march, 2007. Strangely it was requested from the court to combine the two, basically identical Sony and Sonolux cases but the court rejected the request (no explanation given) even though the two cases were basically identical, whereas the Venegas lawsuits to Peermusic and ACEMLA-LAMCO were totally unrelated to each other, were combined. Sonolux has produced about 22 records with GVL songs without any legal licenses. After the records were in the market, worthless licenses were obtained by Sonolux from ACEMLA-LAMCO.
|84-2||Judge Fuste says that Peermusic
income from the song Genesis is less than $2,000 in
taking Peermusic word as truth. This is later used to
award total damages of $5,000. The "les than $2,000"
number should been "greater thatn $39,000".
|Judge Fuste took issued his
opinion five months after the trial ended. He stated at
the end of the trial that his opinion would be issued in
It is incomprehensible, to take so long to err so much.
|Judge Fuste did not
properly apply the res judicta doctrine. On a The prior "renewal rights"
ownership decision by judge Fuste, he assigned renewal
rights to defendant and state executor Chavez. This
means that the children of GVL had to litigate their
copyright ownership (including the renewal rights)
claims twice, once in state courts (when sued by
Chavez) and then in federal court, all because in the
state court the suing party (estate executor Chavez)
did not argue or adequately argue or bring up an
alleged right to renewal rights. Because the children
of GVL had to litigate ownership claims by Chavez
twice, that is clear a violation of the res judicata
principle that a single controversy, ownership in this
case, must be resolved in a single case and not in
multiple cases. On this Fuste made a major error.
ROOKER et al. v. FIDELITY TRUST CO. U.S. Supreme Court decision states that Distrct Courts may nor revise State Court decisions. Only the Supreme Court can, if a timely apeal is made.
Additionally Fuste made a an error in taking for granted the song Genesis had real renewal rights. Since GVL only gave a license to a Mexican publisher while retained the rights for his territory, that publisher was never an owner of the song (regardless of what the contract said) and could not take out a copyright registration in the authors' territory as they did.
|50-17||Error: Judge Fuste erred by
omitting a required opinion as to whether there was a
Peer infringement of the songs Apocalipsis and
Génesis by virtue of the fact that Peer
authorized ASCAP to license the songs and ASCAP licensed
the songs without having a right to do so.
Note: As of 8-8-05 ASCAP has refused to remove the named songs Apocalipsis and Génesis from their catalog as requested by GVL Inc. This is of course temerity on the art of Peer and ASCAP.
|Judge Fuste did not emit a
single judicial order. He did not order Peer or
LAMCO-ACEMLA to retract any of their illegal licenses,
to have the ilegal production of records stopped, to
return illegally collected royalties to whomever paid
them, to retract illegal copyrights, to notify their
clients that they did not have rights over the songs, to
annul contracts and other legal documents (example:
ownership transfert of songs from Chavez toACEMLA-LAMCO,
a public document) etc. Clearly this judicial order void
is a miscarriage of justice towards plaintiffs and will
create the condition that when the litigation is over
the plaintiffs will have to start another litigation to
stop the infringements. What a dumb way to achieve
|Judge Fuste leaves the
ownership of 7 songs, including the song Genesis, in a
legal limbo not understood by plaintiffs or their
lawyers. This is the problem: Fuste says that plaintiffs
own an 80 percent share and that defendant Lucy Chaves
owns 20 percent. But , independent of this, Peermusic
claims to own about 93 percent of the word market by
simply saying that they own the song for "the rest of
the world". This claim by Peer, of the world
market was unchallenged and unopposed by the judge, as
if he did not care that that meant that the real owners
be Peer, who has a habit of not paying royalties, making
a shamble of his own decision regarding ownership.
Note: International rules including the TRIPs Agreement and the Berne Convention allow the U.S. to enforce its copyright rules under local laws in over 100 participating nations.
|Judge Fuste decided that the
ownership of 8 songs that Peer transferred to itself for
renewal (actual) period through a falsified GVL
signature, belong to Peer, whereas the law required the actual signature of the person
who executed the transfer, GVL in this
case. Fuste ommits these facts from his decision. These
are the "assignment" dates and songs and the Peer
Cuando me vaya (0044)
Additionally the renewal period for the song TU BIEN LO SABES commenced in 1999 (registered on 9-9-71), so those rights belong to plaintiffs. So by claiming ownership and having the song in their catalog Peer infringed the song.
Interesting: The song Tu bien lo sabes is being, at present, licensed in Mexico by Peermusic co-publisher and partner in Mexico, PHAM. Problem is that the have as credited another author (Lazo Pena Alfaro Eduardo) as the composer of the song. A nice way to avoid the payment of royalties. This song was the among first hits (if not the first) of legendary Mexican Trio Los Panchos.
Sec. 205. Recordation of transfers and
Supreme Court decision: FISHER MUSIC CO. v. M. WITMARK (1943): "Since the enactment of the Copyright Act of 1870, 16 Stat. 198, 213, assignments of copyrights must be recorded in the office of the Register of Copyrights." Peer never recorded the 1952 contract signed by GVL nor the 1984 agreement letter, the two documents used by Peer to "prove" their ownership rights.
This is where the Slotnick theory that plaintiffs had no right to information came in handy and this is clearly a reason why Peer did no show their proof of ownership when that proof was reqested by plaintiffs before the lawsuit and why Peer requested assignments of these songs from plaintiffs in 1997. Everything Peer did was illegal and deceitful. The forged signatures are just that: forgery and that is fraud.
Note: States copyright attorney Ivan Hoffman at http://www.ivanhoffman.com/termination.html that for assignments made before January 1, 1978, "A creator may not contract away the creator’s rights to renew a copyright or to terminate the grant.".
The same Supreme Court decision: FISHER MUSIC CO. v. M. WITMARK (1943) establishes that authors can sell their renewal rights before they accrue in exchange for a benefit. What Peer alleges means that they get renewal rights in exchange for no consideration, meaning for free, without any separate negotiation or understanding of what renewal rights are. It was an error of Fuste no to declare null the assignments of renewal rights in the blanket contract signed by GVL wherby unnamed songs were assigned to Peermusic.
Note: Since all songs that Peermusic claims to own should be in their renewal period, and Peermusic has no legal assignment of those renewal ALL PEERMUSIC SONGS BELONG TO PLAINTIFFS. If Peermusic claims that some songs are not in their renewal period because it was never copyright registered, then that means that Peermusic schemed so that such songs never reached their renewal period so it would never reach a renewal period and would never return to the composer. GREAT SCHEME. Additionally by not registering songs whatever assignment was made to Peer could never be terminated by the author, as allowed by the law, because the law allows termination after a number of years after a song is registered. No registration, no termination. This scheme was actually admitted by Peermusic in the trial. Peer said that the delays in some copyright registration was to extend the Peermusic ownership period. Of course the looser of the scheme was the composer and the plaintiffs, if the Fuste decisions are left standing. BUT THE GREAT SCHEME IS PART OF THE TRIAL RECORD.
AN IMP0RTANT QUESTION HERE IS:
says the song Genesis, per LAMCO's argument, was "part
of a 1993 BPPR Christmas special" but elsewhere, so as
not to award damages of $43,000 or more (depending on
the deductible expenses related to the $260,000
payment of BPPR) for LAMCO's infringement, Fuste
states that the performance was not proven. A clear
contradiction of Fuste. It is actually comic
that Fuste did not ask Bernard of LAMCO if he knew
anything about this performance and if it was not, why
did LAMCO extort a payment ($43,000) for its
performance. And why did Fuste ignore the CD of the
performance, for which Banco Popular paid LAMCO
royalties ($16,000 which LAMCO had no right to collect
as decided by Fuste himself as this was the damage
award he gave plaintiffs).
See Fuste Opinion Page: 74-17
Note: Banco Popular money split and
award to plaintiffs
Note: ACEMLA has never voluntarily divulged their licensing to Banco Popular or paid a single cent of the money they received from Banco Popular to the owners of the songs, the plaintiffs. Apparently the judge saw nothing wrong in this plain theft.
Ignored by Judge Fuste:
Ignored by Judge Fuste:
Ignored by Judge Fuste:
The other LAMCO infringements:
says says that mere authorization
(by ) to use a song by a non-owners Peer and LAMCO is
not infrigement. Because of his decision, Fuste
eliminated over 200 infringements. Fuste has erred
106. Exclusive rights in copyrighted works
Note:The congressional record explains why the word authorize was included and gives an example: If a movie is rented to a theater without the owner's authorizaton, the mere rental is an infringement.
WIPO GENEVA CONVENTION
THE ABOVE MEANS THAT USA, IN ORDER TO COMPLY WITH THE BERNE CONVENTION, MUST CLASSIFY NON-OWNERS AUTHORIZATION TO PERFORM AS AN INFRINGEMENT.
The judge: Stealing a song for many years is not as bad as singing it once.
PEER'S OWN ARGUMENT IN PEER VS. LAMCO CASE:
PEER'S OWN ARGUMENT IN PEERMUSIC vs. P2P
81...An infringement ocurrs each and every time one of their millions of users, without authorization of the copyright owner, uploads the title of a copyrighted music file to the indexed database, thus offering it for distribution,...
Clearly the above can be construed as meaning that the mere listing of a song in a catalog, even before any licenses are issued, without the authorization of the copyright owner, is infringement, per Peermusic.
COMMON SENSE LOGIC
COMMON SENSE LOGIC, PART 2
Double/Triple level infringements were made
8. The actual infringement was direct, by licensing songs that were not one. The opposite of direct infringement is contributory or vicarious infringement, where the actual infringement is made by another, the direct infringer. The judge did not see that what plaintiffs alleged was that ACEMLA parties and Peermusic committed direct infringement because they illegally licensed other as if they were the owners of the songs, and act that destroyed the value of the rights for the real owners, plaintiffs.
|The judge did not:
a. Required the parties to present any relevant dispositive motions regarding any surviving legal claim that were not resolved by his judgment. There were such a the copyright registered songs by LAMCO, the songs in the Peer catalog (example: Mi cabaña), Peer that was simply brushed aside with a statement that they did not claim them, the licensing of songs by Peer which Peer did not even claim to own (example: Borre tu amor), etc. etc..
b. Order that all persons acting in concert with any of of defendants be permanently enjoined from authorizing or purporting to authorize or license the public performance or any other use of the plaintiffs compositions object of the litigation, and from otherwise infringing or contributing to or participating in the infringement of the aforementioned songs.
c. To delete all references to the plaintiff's compositions from their catalogues and all marketing or promotional materials;
d. To file the appropriate quitclaims and assignments and to otherwise have expunged from the records of the Copyright Office any and all unlawful contracts, assignments or other recorded documents affecting the Plaintiff'stitle in and to the compositions object of this case.
As of June/2006 defendants continue to infringe and mislead others as to the ownership of plaintiff's songs.
Note: In another case (96-cv-02312 - Judge Perez Gimenez) the judge ordered all of the above in judgements which favored Peer.
|The Venegas vs.
On another case in the Fuste court involving the Venegas heirs, Venegas vs. Sonolux, the court also operated against the Venegas's by reducing an origianal default (Sonolux did not reply to the lawsuit)$1.6 million actual damages judgment damages of (Jan. 2003) against Sonolux to a $300,000 "statutory" award (March 2004). This action was contrary to law, as statutory damages cannot be applied when the copyright registration was made after the commencement of the infringements. The infringements commenced well before 1997 and the songs were copyright registered on 2000. It seems no one noticed. As of July 2006 Sonolux has not paid a single cent of the $300,000 plus $76,783 legal fee award plus interests . Sonolux is owned by the biggest private company of Colombia, Organización Ardila Lülle.
|4. EFFECT OF ERRORS AND TYRANNY
The Jose A. Fusté errors shown have these effects:
a. It condones the appropriation music by music publishers and unknown composers and heirs will never know that Peermusic "owns" their songs as decreed by Judge Fuste.
b. It shows how biased a court can be against the victims.
c. It shows how a court has no real understanding of the word "equity" and jurisprudence.
d. It can result in great injury to the children of Guillermo Venegas Lloveras such as loosing their dreams, their reputation and who knows what else because of the actions of an insensitive court and judge named Jose A. Fusté. Mr. Fuste is the president of the Puerto Rico Federal District Court.
e: Many songs by Guillermo Venegas Lloveras will die, since the declared owner is a music publisher that does not publish at all and has shown it no wish and capability to get the music recorded and is tainted by being deceitful toward composers and composer heirs. Of the aproximately 20 songs that Peermusic now owns per this absurd José A. Fusté decree, a single new recording has never been made in the aproximately 50 years Peer has "exploited" the songs. It is as if these songs have been put in a death cjamber intentionally. Per José A. Fusté, Peer has now 60 more years to explot the songs, what they have not wanted to do in 50 years.
f. Composers and artists cannot go to court to get their due rights and justice.
g. The music of Puerto Rico will die.
h. Author and heir rights abuse by the music industry will continue. See our PIRACY page to see how bad it is right now. It cannot get worse.
i. The Peermusic vs. ACEMLA case will proceed in an erroneous course of action. The court in that case will not realize the pattern of misconduct of two music publishers fighting over songs which have been illegally obtained. Who who tell that cout of judge Juan Perez Gimenez?.
The children of the composer have been exposed to an
unjustified and ridiculous lawyer
charge of about 1 million dollars.
|5. FUSTE OPINION AND ERRORS
Fuste Opinion Page: 1-18
Fuste text: Plaintiffs request monetary and injunctive relief
Error: Fuste did not mention or give or deny any injunctive relief. So he forgot about it?
See page 77, line 15 for more re injunctive relief
Fuste Opinion Page : 2-21
Fuste text: Since GVL’s death, the rights to GVL’s music have been in dispute between Plaintiffs and Defendant Chávez-Butler in the Puerto Rico state courts.
Error: Not so. The dispute referenced ended in 2002. This comments by Fuste helps Peer position that the music was in dispute and that somehow prevented them from making royalty payments never made to plaintiffs and that would mean that Peer dd not have to say "Peer did not pay royalties because the songs belonged to plaintiff which is why Peer asked for their assignments in 1997" .
Fuste Opinion Page: 2-7
Fuste text: Peer Defendants then report and pay royalties to the composers in connection with their licensing activities
Error: But this case showed the opposite, that Peer does not pay royalties. This comment wrongly helps Peer image. Again Fuste takes Peer words at face value without any proof and the repeats them.
Fuste Opinion Page: 3-3
Fuste text:On September 22, 1999, the state trial court issued its opinion, finding that GVL’s musical work belonged to his children.
Error: 1. The real date is January 28, 2000 at the Appeals court. It is a mystery whay the date of January 28, 2000 appears nowhere. It was hidden, really.
Error: 2. On another opinion, by Fuste, Fuste stated that the PR courts declared themselvers without jusrisdiction as to copyright claim.
Error: 3. The statement contradicts a prior "renewal rights" ownership decision by the judge, that there are other owners as well.
Error: 4. On the prior "renewal rights" ownership decision judge Fuste states that the the state trial court did not decide about ownership of (already existing) renewal rights, even though the state courts stated that "ALL rights" belonged to plaintiffs. Since ALL means all, judge Fuste was wrong in assigning renewal rights to LAMCO parties in his decision.
Error: 5. The prior "renewal rights" ownership decision by judge Fuste decision means that the children of GVL had to argue their ownership rights twice, once in state courts and then in federal court, all because in the state court the suing party (hered defendant Chavez) did not argue or adequately argue or bring up an alleged right to renewal rights. Because the children of GVL had to litigate the same claim by Chavez twice, that is clear a violation of the res judicata principle that a single controersy must be resolved in a single case and not multiple cases. On this Fuste made a major error.
Very strange: The date of January
28, 2000, where the Puerto Rico court stated that
all rights belonged to the children of Venegas and
that if Chavez had any rights she expressly ceded
them to the children. That was appealed by Chavez.
Fuste ignored the decision of January 28
ignored the appeal to favor ACEMLA.
Note: In march 7, 1997 GVL estate executrix Chavez Butler (now part of LAMCO parties) tried to terminate the songs with Peer. Peermusic should have at least told her the dates when termination rights accrued under their theories. Instead Peermusic never replied to Chavez Butler, apparently applying to her also the Slonick-Peermusi theory that GVL heirs had no right to information. It is very strange how Fuste decided about LAMCO party rights and that LAMCO parties did not object the leaving out of termination rights.
Note: By owning 20 percent of a song
(the estate executor Chavez) as decreed by
Fuste, when that 20 percent owner previously stole
over 500 songs from the GVL heirs (owners of the
80 percent) and on top of that sued the same GVL
and on top of that exploited the song (over
$60,000 income) without sharing any of the income
with the other owners, the arrangement has a
significant meaning overlooked (another error) by
Fuste: The song is unexploitable since to exploy
the song collaboration and payments of income
between all owners is required. That means that
Genesis is is unexploitable, commercially
worthless, a total loss, since the GVL heirs could
not even enforce their rights since to do that,
any claim in court must represent 100 percent of
the ownership and that cannot be achieved if there
is no trust among the varios owners. This result
is contrary to the constitutional intent of the
copyright law, to promote the creation of works of
art. Who will create art knowing that the art
could end up dead because of court decisions (and
because the law forces the creation of multiple
owners), like in the present case.
Fuste Opinion Page: 3-18
Fuste text: Plaintiffs alleged that GVL never assigned any rights to Peer Defendants.
Error: Plaintiffs never alleged any such thing. There was not doubt that GVL signed some contracts but the problem Peer has was that before this trial it never presented to plaintiffs the evidence they had and in effect gave up the ownership they may have rightfully had and decided to recognize plaintiff as owners in 1997 (see Fuste comment) when it requested new assignments. Fuste says this, out of his own volition to make look bad when associated with the sentence that the songs were assigned to Peer and that that assignment is still in effect. This should not happen (look bad) because by 1997 (see Fuste comment) , when Peer requested assignments to all Peer (now) claimed songs Peer could not or would not show or had shown any assignment document other than a blanket assignment (1952 contract) that was summarily rejected as worthless by plaintiffs, GVL children. Clearly, plaintiffs had every right to state that GVL had never assigned any song to Peer.
Note: The assignment request by Peer was
spoken of at trial by Rafael Venegas and the
assignment request documents are part of plaintiff
Fuste error re GVL music case at Arecibo court
Fuste Opinion Page: 3-5
Fuste text: The state trial court also concluded that it had no jurisdiction over Plaintiffs’ copyright claims.
Error: This is a totally wrong interpretation of what the PR courts decided. The court decided in favor of the copyright claims of the children of GVL, after Chavez claimed (in two Certiorari) that the court erred and that she had federal renewal rights and that the court had no jurisdiction. The PR courts stated that the it did had jurisdiction and rejecterd her renewak rights/federal law claims. What the PR court rejected was a counter suit claim by the children of GVL because it lacked jurisdiction - the claim looked like a copyright infringement claim and the court interpreted it as such and said such infringement claims are a federal issue. But now Fuste is saying there was no copyright infringement in the transfer of non existing rights (for the estate-executor) by estate-executor to ACEMLA and the subsequent licensing except for the one song (Genesis) payment by Banco Popular. A clear conflict between courts. Fuste is also wrong about the transfer by the estate-executor as follows: The estate-executor authorized ACEMLA to license the songs and ACEMLA did license songs to Sonolux (a direct infringer) which in turn produced records. Therefore the estate-executor authorization to ACEMLA was an act of (contributory) copyright infringement for these songs licensed by ACEMLA: Genesis, Desde que te marchaste, No me digan cobarde, *Amargo amor, *Chiquita, *Be my love, *El angustiao, *Lost, Maria, *Nuestro Amor, *Pain of Love, *Verano sin amor, voy asi, and other miscellaneous licenses which ACEMLA (as vicarious infringer) issued.
Because of this interpretation of what was decided in state trial court, Fuste gave himself the liberty of deciding the ownership fate of 8 (renewal period) songs in favor of Chavez by ignoring the fact that Chavez had claimed federal law rights and that claim was rejected by the Puerto Rico Supreme Court and that was final for all courts unless appealed to the US Supreme court. As it turned out the appeal was made to Fuste by ACEMLA (who has no right to get involved in Chave's possible rights) who made the wrong decision that "The state trial court also concluded that it had no jurisdiction over Plaintiffs’ copyright claims"
By deciding that Chavez had rights in
8 renewal period songs, after Puerto rico courts
had decided she had no such rights, Fuste
violated the Rooker-Feldman
doctrine, that says federal courts cannot review
what has been decided in state couert.
Fuste Opinion Page: 3-16
Fuste text: The complaint alleges that Peer and LAMCO Defendants infringed the copyrights in unspecified musical compositions ostensibly written by GVL and owned by Plaintiffs.
Error: "Ostensibly" applies only to the songs that Peer claims to own, because for some Peer has no score or lyrics,
Fuste Opinion Page: 3-18
Plaintiffs alleged that GVL never assigned any rights to Peer Defendants.
Error: Plaintiffs never alleged such a thing. This "fact" was made up by the judge. What plaintiffs said to the court was that before the lawsuit Peer refused to show the documents that proved such assignments and that in 1997, rather than show the proof of the assignments, Peer acknowledged plaintiffs as owners and made an offer to administer the songs in exchange for assignments from plaintiffs for all songs. The offer was rejected by plaintiffs.
Fuste Opinion Page: 3-22
Fuste text: Plaintiffs claim copyright ownership by virtue of a copyright registration certificate filed by Rafael Venegas in the United States Copyright Office on October 23, 2000,
Error: Not so. Ownership is claimed by virtue of Puerto Rico inheritance laws and Copyright law.
Fuste Opinion Page: 4-3
Fuste text: The ownership of eight copyrights in their renewal terms after 3 GVL’s death remain unsettled between Defendant Chávez-Butler and Plaintiffs.
Error: In other parts of the opinion Fuste says that LAMCO parties have rights. Opinion: In light of PR inheritance law requirement of exclusive inheritance this issue will have to be resolved.
Fuste Opinion Page: 4
Fuste text: GVL signed ten contracts with Peer Defendants
Error: Only three were presented by Peer (1947-1952-1970) and they may be falsified because of the Peer habit of requesting signatures on blank contracts - some of which were presented at trial. The MAS ALLA contract of 1947 is suspect because Peer knows nothing of the song or documents about were not presented in discovery perhaps to hide something about the song. Judicial perversion of the truth.
Fuste Opinion Page: 4-13
Fuste text: In all, GVL signed ten contracts with Peer Defendants for the rights to his songs.
Error: This is false. At most GVL signed three song assignment contracts with Peer. What Fuste has done is that he has added the seven non exclusive and unworkable song assignment contracts that GVL signed with PHAM, a Mexican publisher that surely never divulged to GVL that it had a contractual co-publisher agreement with Peer or that they belonged to Peer (as Peer now claims). Peer used the assignment of seven songs through seven non exclusive and unworkable contacts to PHAM in 1969 as proof that GVL was satisfied with the non existent Peer performance. Peer never got a single GVL song recorded in over 50 years it allegedly administered 21 GVL songs.
Note: If PHAM assigned the rights to the
song to Peer, that is to their parent company, who
wound up retaining 87 percent of the royalties on
the fist royalty cut, this was not in the interest
of GVL. In GVL's best interest, PHAM had to find
co-publishers that actually promoted the use of
the songs at the lowest cost, no a publishers like
Peer who did no promotion at all and retained 87
percent of the royalties. An insider conspiracy
against GVL but Peer owned PHAM? As ordered by
Peer? We shall find out soon enough.
Fuste Opinion Page: 6
Fuste text: Peer Defendants agreed to “make reasonable efforts to publish or exploit certain of the musical compositions...
Error: Fuste never makes a determination as to whether that effort was reasonable. The evidence is that Peer never got anyone to make a new recording of any of the songs GVL may have assigned to Peer.
Fuste Opinion Page: 6
Fuste text: Under GVL’s signature, there is an additional clause, in different typeset, which states in quotation
marks, that “[a]fter the expiration date, this contract will continue in full force until all moneys advanced are recovered.”
Error: The legality of this fact is not further discussed.
Fuste Opinion Page: 6-7
Fuste text: Peer Defendants agreed to “make reasonable efforts to publish or exploit certain of the musical compositions composed and written by [GVL],” and to pay royalties of, inter alia, fifty percent of the net amount received for mechanical royalties, synchronizing fees, transcription fees, foreign royalties, and performing fees.
Error: The Peer-GVL contract of 1952 says no such thing. Per that contract Peer agreed to nothing. All that it says is that Peer MAY exploit certain songs. The word MAY means they do not have to perform anything at all. Anyway the net result of whatever reasonable effort was made is that not a single new recording has been license by Peer probable since the contracts was signed in 1952 and certainly no recording has been made since 1954 (This is the year I migrated to New York) and all recording of those songs were made before or licensed by another (GVL himself or ACEMLA). PHAM songs excluded from this comment.
Fuste Opinion Page 7-1
Fuste text:GVL contacted Peer Defendants in 1964 to obtain a release from Peer’s construction of the 1952 Agreement.
Error: There was no evidence, other than heresay or documents not signed by GVL, that what Fuste says is true. The truth, as evidenced by Peer's documents, is that GVL contacted and combated Peer several times to get his songs back starting in about 1953. Reason: GVL realized from the beginning that Peer was not promoting the songs he gave (unknown at this time, since Peer kept no records - or destroyed them - of songs received) ) and royalty payments were not being received.
Error: Fuste could have said, more accurately, that "Peer Defendants developed a plan in 1964 to have GVL return unrecuperated royalty money to Peer and to to get the assignments to a number of songs that Peer planned to get anyway "without the author suspecting".
The basis of the Fuste comment is a 1964 letter that was not shown or copied or even mentioned by Peer to GVL heirs before the lawsuit was filed. Because of this the letter is inadmissible as evidence. The fact that the letter was never shown to heirs meant that heirs did not know when any song named in the letter was assigned so as to determine when the assignments could be terminated by the heirs so as to regain their control as allowed by law.
"GVL to Peer" Letter: Page 1
Also the letter was never recorded by
Peer as required by the copyright law
then in effect.
The 1964 Letter of Agreement
Fuste Opinion Page: 7-3
Fuste text: Further, on April 29, 1964, GVL sent a letter to Peer Defendants
Error: This is not true, it is a fabrication, as GVL did not send any letter to Peer. GVL was given a page 2 of a two page letter to sign. This letter included a common contract trick: You sign and Peer will give you a copy of the Peer signed version and that version would never be given to the composer. Thereafter composers do not know what they signed and if they go for legal advise to a lawyer they cannot get it because the need a copy of the contract, just as happened to us, where Peer stonewalled in providing contracts. This letter was written by Peer at the same time it was trying to acquire songs "without the composer suspecting". Also the letter is not signed by Peer (as is required by the letter itself to make the tems of the letter valid) and that makes the letter invalid to make any claims by either party.
The letter has two pages. All the contract terms are on the first page. The signature is on page 2, the page that basically says nothing material. Since the two page letter fitted easily on one page it is clear that the idea was to have the ability to change page one and replace it with a new one, with terms and conditions that the signer of the letter never saw. This explains why GVL seems to certify the he composed the song BORRACHO SENTIMENTAL and assigned the song to Peer on page one, a song that GVL clearly did not composed. GVL wrote to Peer about this when he found out that Peer had put his name on the song BORRACHO SENTIMENTAL.
Note: Fuste took gave credence to this letter and it is based on it that he gave Peer the rights to many songs. Had he not done so Peer would have had to pay many millions of dollars in damages to plaintiffs. Fuste took five months to decide that this letter was legitimate, a clear error that saved Peer perhaps over $50,000,000 (fifty million dollars).
Note: Between the 1952 contract and this 1964 letter Peer did not have a single song recorded (at least no evidence of such a recording has ever been seen by plaintiffs. A contemporary Peer letter indicates that GVL claimed that Peer had done nothing with his songs. If GVL had the option of not making this 1964 "assignment" why would GVL have done so in view of Peer history of non performance of the contract and its utter failure to have one single song recorded? Sounds wierd, doesn't it. The only explanation: The letter is a forgery - page one was switched. After all Peer was in an "without the author suspecting" mode of operation. After this letter was dated, Peer never got any of the songs recorded, in over 40 years. Some are really great songs.
Note: The letter in question is invalid because it it not signed by Peer. Also Peer presented no evidence that a signed copy was ever forwarded to GVL. Clearly for this letter to be considered a contract a Peer signed copy must have existed and forwarded to GVL. Otherwise GVL could not make any contractual claims against Peer.
The basis of the Fuste comment is a 1964 letter that was not shown or copied or even mentioned by Peer to GVL heirs before the lawsuit was filed. Because of this the letter is inadmissible as evidence.
"GVL to Peer" Letter: Page 1
Also the letter was never recorded by
Peer as required by the copyright law
then in effect.
the 1952 GVL-Peer contract to be modified through
the 1964 letter of agreement cited by Fuste, there
had to be additional considerarion (payment to GVL)
for it to be effective (valid). But instead of
having additional consideration, the agreement
required GVL had to return money to Peer, the
opposite of additional consideration.
Fuste Opinion Page: 7
Fuste text: states that the compositions were written by GVL
Error: Since it include at least a song not written by GVL, that is proof that this letter (at leas page 1) is fake.
Fusté on alleged 1964 assignment letter
Fuste Opinion Page: 7
Fuste text: I hereby certify that the above list of musical compositions is complete and accurate
Error: It could not be accurate if it included a song GVL did not write (Borracho Sentimental). Of course it could be argued that maybe GVL was not accurate, but this letter was written at the same time or thereabout when n the request was made by Peer to its Puerto Rico manages to acquire songs "without the author suspecting.
Error: Fuste awarde the song Borracho Sentimental to Peermusic without due process for the real owner.
By decreeing that Borracho Sentimental belongs to Peer that will have the effect that a recording may be produced in the future with the song identified as a GVL song, a moral rights violation against plaintiffs caused directly by Fuste.
Suspect that this Fuste decree re Borracho Sentimental is meant to save Peer from the embarrassment of Peer in its claim in Peer vs. LAMCO before Perez Gimenenz.
The decree that songs belong to Peer are wrong because Fuste has no proof that GVL wrote any of the songs, the only valid proof being the signature of GVL in a document with the song score or lyrics. Just a signature on a list of songs that include at least one non GVL song (Borracho Sentimental) makes the GVL declaration (on 1964 letter written by Peer) that he wrote the songs non valid, the only explanation being, since GVL was not a thief, that: 1) page one was switched by Peer after he signed the second page. 2) GVL did not understand the letter because it was in english.
Note: The 1964 letter on which Fuste based his decision, as if the letter was a valid contract, is an invalid document because it has no Peer signature and the document itself states that without a Peer signature the document is not valid. Also for a contract to be valid, it must be signed by the two parties. Fuste makes no mention of this in his decision.
Note: The letter in question is invalid because Peer did not presented any evidence that a signed copy was ever forwarded to GVL. Clearly for this letter to be considered a contract a Peer signed copy must have existed and forwarded to GVL. Otherwise GVL could not make any contractual claims against Peer. Fuste makes no mention of this in his decision.
"GVL to Peer" Letter: Page 1
If GVL had refused to signed this letter, the songs would be stolen by Peer anyway per the "without the author suspecting" plan.
Note: The letter of agreement was never
recorded by Peer as required by the 1909
Because the document was not recorded,
when the heirs of GVL did a search at the
Copyright Office before suing Peer, the letter of
agreement was not found. The purpose of the
required recordation at the Coyright Office was
precisely to put on notice that songs were
assigned by the author. See more on recordation
Fuste Opinion Page: 8-3
Fuste text: ....in accordance with the terms and provisions of my aforesaid agreement with you.
Error: This section cites the contetnt of a letter but intentionally and deceitfully leaves out the following text: "Your signature at the bottom will signify your accepatance of and agreement of all the terms and conditions set forth in tis agreement." The agreement was never signed and accepted by Peer.
Note: The letter was actually made by
Peer, so it is a Peer to GVL letter.
Fuste Opinion Page: 8-19
Fuste text: Each agreement provided for a territorial exclusion of Puerto Rico, which would allow GVL to license his work in Puerto Rico.
Error: Shows Fuste bias, Should have said that prevented PHAM, the copyright owner or its licensees (Peer / ASCAP / Harry Fox) from licensing Puerto Rico firms or licensing products to be sold in Puerto Rico.
Fuste Opinion Page: 8-14
Fuste text: a) a Mexican music publisher that, at the time, was owned by Peer. b) PHAM is no longer owned by Peer Defendants.
Error: Fuste assumes that Peer that Peer facts are correct, but Peer has never presented proof they ever owned or founded PHAM. Information on the Internet suggests that PHAM has always belonged to Grupo Televisa S.A. or its founder, PHAM founder Emilio Azcárraga Vidaurreta (1895-1972). At trial Peer said they founded PHAM.
Fuste Opinion Page: 9 footnote
Fuste text: PHAM obligates Peer to account and pay royalties to PHAM, not to the writers who have contracted with PHAM
Error: a. Plaintiffs asked Peer to account for illegally collected royalties in PR. They never did. Interestingly Fuste does not even ask Peer to return that money nor doe he mention that that issue is to be resolved in another case before Perez Gimenez.
b. But Peer tried to get rights to PHAM songs from Venegas heirs in 1997 and they could only be acting as agent of PHAM. So Peer was an agent forgetting the rights to song but not for accounting for the illegal royalties collected from Banco Popular. This is fishy and/or wrong.
Fuste Opinion Page: 9-11
Fuste text: Peer Defendants do not know whether PHAM paid the amounts due to GVL as indicated in Peer Defendants’ statements to PHAM.
Error: Not interested ? Nice partnership. One partner (Peer) doesn't care if the other partner (PHAM) is a thief and Fuste swallowed this illogical "fact" that Peer does not know if PHAM pays royalties. Actually the Peer statement was perjury because various Peer persons were informed by Rafael Venegas that PHAM was not reporting or paying royalties to GVL heirs.
Fuste Opinion Page: 9-13
Fusté text: In 1969, GVL signed a series of single songwriter agreements with Promotora Hispano Americana de Música (PHAM), a Mexican music publisher that, at the time, was owned by Peer.
Error: Then there is double and triple dipping, collecting royalties fist in the USA or another Peer sub publisher and making a cut (there were cuts of 87.5 percent made by Peer on the Banco Popular royalties before sending royalties to PHAM who never reported the rest of the money to the heirs of GVL.). This was not taken into account by Fusté.
Error: Fusté assumes incorrectly that whatever assignment GVL made to PHAM was valid. It was not for several reasons:
a. The assignment contract was not signed by an American consular representative as required by American law. The contract was also not signed by a Mexico Foreign Affairs official. Therefore the assignment is ilegal under American law and may be ilegal under Mexico law.
b. The contract was not recorded at the US Copyright Office within two months (this is the limit for recording the transfer of rights in a foreign country such as Mexico) of the signature date. The recording was made by Peermusic (for PHAM) in 1999. 30 years after the fact. Thus, if after GVL died, the heirs of GVL or anyone else wanted to know if GVL has assigned right to Genesis, that information was not available at the US Copyrigth Office.
c. The GVL-PHAM contract does not state how much consideration was paid to GVL for his giving the rights to PHAM. Meaning, there was no consideration specified in the contract, meaning the song was obtained for nothing.
d. The contract stated that GVL retained the rights for the Puerto Rico territory and for copyright s the Puerto Rico territory and the american territory are the same. Therefore, PHAM was at best given a license, not exclusive ownership as implied in the PHAM copyright.
e. Wen GVL signed the contract he was not aware that Peer claimed to own PHAM and that Peer had actually stolen his songs (see WITHOUT THE AUTHOR SUSPECTING). GVL was aware that Peer was an utter failure in getting his songs recorded... see THE INCREDIBLE VENEGAS SONG EARNINGS REPORT FOR ~50 YEARS (17 years by 1969).
e. At the time of the trial, GVL had died 10 years earlier. During those 10 years there is no evidence that PHAM paid any royalties to the GVL heirs. Additionally there was no evidence that PHAM ever paid GVL any royalties. Those facts made whatever assignment contract GVL had signed suspect and no longer enforceable.
f. The contract says it was signed in Mexico. GVL was not in Mexico at the time. At the same time there is evidence that Peer was at the time arranging a dinner for GVL under the pretense that the host was a PHAM official, for the purpose of getting an assignment of Genesis to PHAM.
Fuste Opinion Page: 9-20
Fuste text: Southern agreed to pay GVL a $300.00 advance against royalties in consideration for the 1
Error: But GVL heirs were not informed of this when Peer requested assignments in 1997 (see Fuste comment) for this song.
Fuste Opinion Page: 10-7
Fuste text: Several songs owned by Peer Defendants in their original term of copyright have reverted to Plaintiffs and Defendant Chávez-Butler in their renewal term
Error: The songs were if anything, owned by PHAM, not Peer.
Fuste Opinion Page: 10-footnote-
Fuste Opinion Fuste text: Copyrights for works created before 1978 persist for an original term of twenty-eight years and...
Error: It omits that the work must have been published.
Fuste Opinion Page: 10-footnote
Fuste text: but the assignment is valid only if the author is alive at the start of the renewal term
Error: It omits the fact that the assignment of renewal rights require the signature of the composer. By not signing the composer retains the renewal rights regardless of what a contract says.
Fuste Opinion Page: 10
Fuste text: take the risk that the rights acquired may never vest in their assignors.
Error: This is demagoguery. Publishers take no risks at all since all they do is minor clerical work with the composition. Whoever made this comments must think that music publisher makes huge investments to promote the music they acquire.
Fuste Opinion Page: 10-footnote
Fuste text: 1985)(“[U]ntil the renewal period arrives, the renewal rights are not vested in anyone.
Error: This seem contradictory to saying that renewal rights vested on Peer if GVL was alive when renewal period arrived, as Fuste states elsewhere.
Fuste Opinion Page: 11
Fuste text: GVL retained ownership of Alma triste in Puerto Rico
Error: Then the ownership was split and this goes against the indivisibility concept that says that if ownership is shared between the original owner and a publisher, all the publisher has is a license, not ownership. This applies to all PHAM songs.
Fuste Opinion Page: 13-5
Fuste text: Concierto para decirte adiós was published on May 22, 1970.
Error: No evidence was presented regarding this fact. Among the Peer documents the 7 PHAM songs only one song had an indication that it may have been publishes because publishing grade sheet music was supplied by Peer (but no proof that sheet music royalties had ever been paid or that copies were actually sold) and it was Genesis. Yet for Genesis, there is no publication date mentioned by Fuste. Again Fuste takes for granted what appear on papers (copyright registration in this case). Maybe Fuste does not know that Publisher are reckless when putting publication dates on copyright registrations.
Fuste Opinion Page: 13-13
Fuste text: The renewal rights throughout the United States, including Puerto Rico, arose on January 1, 1998, and are owned by Plaintiffs and LAMCO Parties.
Error: The renewal rights are for the U.S. and all countries signatories of Berne treaty (who are obliged to recognize U.S. rights). If this were not so, all U.S. renewal rights are invalid for the rest of the world and the music is in the public domain, including those that belong to Peer, outside the US. Here Fuste is playing a Peer card... that Peer owns the rights outside the U.S. (regardless of PHAM ownership, which may be extinct by Mexican law anyway).
Fuste Opinion Page: 15 line 4
Fuste text: The renewal rights throughout the United States, including Puerto Rico, arose on January 1, 1999. The United States renewal rights are owned by Plaintiffs and LAMCO Parties to which Peer makes no claim of ownership.
Error: Fuste never makes a mention that Peermusic never notified plaintiffs that hey had acquired the renewal rights for the PHAM songs without renewal registrations, HASTA QUE ME OIGA DIOS, Primavera and Raza Negra or that it retained rights for the rest of the world. When Peer tried to obtain assignments from heirs in 1997 (see Fuste comment) no mention was made that regardless of our assignment Peer would have world rights. Deceit and fraud by Peer.
Fuste Opinion Page: 17-11
Fuste text: the above mentioned 11 1964 Agreement
Error: But the agreement was never signed by Peer, so it is invalid by its own terms.
Fuste Opinion Page: 17-21
Fuste text: they were signed by Peer as attorney-in-fact for GVL.
Error: But this is contrary to copyright law that requires the actual signature of the composer and Fuste does not mention that. Also Fuste does not mention that if GVL gave Peermusic a power of attornet back in 1952, that power was given contrary to Puerto Rico (where the contract was executed) law because it was not notarized and was therefore illegal The issue was raised by plaintiffs but that fact, which required a court decision) is omitted altogether by Fuste.
Note: Everyone or every government agencyt that requires a power of attorney to allow a representation or a transaction alwats says or refets to "notarized power of attorney". Apparently Fuste does not know that. For example, in New York, whose laws allegedly apply to the GVL-Peer contract, for a transfer of an automobile, to represent another in the transaction a "notarized power of attorney" is required.
sure, the author asked this question by telephoneto
various Puerto Rico and New York State agencies: Is
there any chance that an unotarized power of
attorney have any valuee in the State of New York?
These were the replies:
Additionally the renewal documents are signed with the name of Guillermo Venegas alone and that makes it impossible to determine who signed and if that was an officer of Peer and if whoever signed was authorized by New York state law. We believe that only these can sign in New York: A corporate officer, partner, or member or manager of a limited liability company and any other signature is invalid.
that that the 1952 contract was not notarized meant
that GVL, who did not understand the language of the
contract (English) did not have the benefit of being
asked by the lawyer notarizing the document if he
understood the contract he was signing. In 1952 the
vast majority of Puertoricans did not understand the
Fuste Opinion Page: 18
Fuste text: Peer Defendants stopped paying royalties in 1993
Error: Fuste does not use this information at all, for example to increase damages for statutory damages. Shows that Fuste is biased in favor of Peer. Also the statment is not supported through any document or evidence presented to the court or to plaintiffs, that Peer paid up to 1993 or that it made any royalty payments ever.
Fuste Opinion Page: 18-1
Fuste text: Peer Defendants stopped issuing royalty reports in 1993 and did not provide any royalty reports to Plaintiffs until discovery in this litigation.
Error: Peer (or anyone else) did not produce any evidence that they paid any royalties to GVL on 1993 or any previous years. Fuste takes for fact a Peer testimony which may not be true. It semms that Fuste takes for granted anything that Peer says but is nor supported by documents, arbitrarily.
Note: Allegedly, on a separate case
being herd in Puerto Rico courts (2007, Ketty
Cabán vs. Peer) Peer has not been able to
produce proof (royalty checks signed by
Cabán) that they have made the royalty
payments they claim to have made to Cabán
because, allegedly, signed checks are not saved by
Peer (as allegedly required by law).
Fuste Opinion Page: 18-18
Fuste text: Peer had registered its claim to Génesis
Error: Not so. The song was registered with PHAM as owner. Again, Fuste takes as fact whatever was said by Peer. Peer has never been a legal owner of Génesis anywhere. This being a material issue, Peer committed perjury and Fuste passes Peer's fabrications as good information.
Note: Peer claimed that it acquired the rights to the song from PHAM, a Mexican music publisher. The problem here is that whatever assignment that GVL made to PHAM so that PHAM would manage the song, assuming it was legal, did not allow PHAM to pass any rights (administration or otherwise) to others. So if PHAM transferred rights to Peer the transfer is invalid.
Also, the assignment of rights to PHAM by GVL were also invalid, as the assignment process did not comply with American copyright law for transferring rights at another country. The assignment was not not signed by any consular officer or secretary of legation as was required. This is what the law (Copyright Act of 1909) said:
Every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts.
Fuste Opinion Page: 19
Fuste text: Peer attempted to obtain an assignment from Plaintiffs for the song Génesis
Error: In 1997 Peer attempeted to get an assignment for all the songs which prior to 1997 Peer was claiming ownership. Then at a later time (about 1999), Peer attempted to get an assignment for Genesis only, but at the time Peer was still refusing to cooperate with plaintiffs in the search for the truth as to how it was that Peer had acquired the various GVL songs it claimed to own. With zero cooperation I don't think Peer wanted an assignment. Just a defense for their case against ACEMLA, where they were claiming ownership of the song. Fuste likes to make Peer look good with his comment.
Fuste Opinion Page: 19.
Fuste text: offering them an administrative deal
Error: Same as above. No deal was ever offered. They asked that I call them to discuss an administrative but the "deal" was never presented. Fuste likes to assume that Peer statements are honest.
Note: The deal may have been illegal for
the PHAM renewal
songs if the PHAM assignments are covered by
Mexican law on the argument that Mexico laws has
no renewal periods and if PHAM still owned the
songs for the world minus PR, Peer could not be
working out "renewal" deals with plaintiffs, since
their license from PHAM was still in effect.
Note: Peer never notified plaintiffs that renewal in their name had been made by Peer. So only Peer knew they existed and that plaintiffs had become owners of Genesis but plaintiffs did not know it.
Very revealing of Fuste intentions:
Fuste did not mention the Peer request that
plaintiffs assign the songs to Peer in 1997
comment) , an act that plaintiffs could do
only if plaintiffs were owners, a crucial
Fuste Opinion Page: 20
Fuste text: Peer did not notify Harry Fox when its ownership claim in the 1 United States for Génesis ended on December 31, 1997.
Error: Fuste fails to mention that they also never notified heirs also and did all possible to hide the fact.
Fuste Opinion Page: 20
Fuste text: BMG wrote to both Plaintiffs and Peer informing them that BMG had received conflicting claims
Fuste text: On March 26, 2002, Peer contacted Harry Fox and requested that it stop licensing the song Génesis on Peer’s behalf.
Error: Fuste fails to mention that Peer did not respond to BMG or plaintiffs. This omission makes Peer look less bad and shows bias by Judge Fuste and helps Judge Fuste justify the low money and absurd award of damages.
Fuste Opinion Page: 21
Fuste text: that permit them to broadcast any song in ASCAP’s repertoire
Error: The statement is based on ignorance as to how ASCAP operates. ASCAP does not give radio stations a catalog of songs, so radio stations operate blindly and are thus forced to play music without knowing if they have the right to play the song.
Fuste Opinion Page: 21
Fuste text: Not every song that Southern Music registers with ASCAP will be listed on its webpage; a song will be listed only if ASCAP has surveyed or paid that song.
Error: This is fantasy land. Defies logic since the only possible way a radio station (or restaurant, etc.) could determine if they are licensed to use a specific song in a reasonably short time, it would be by finding the song listed at ASCAP web page (the de facto catalog).... and even that is questionable, since there is no document possessed by the licensees to prove he was authorized to play a particular song. Fuste gives some credit to the ASCAP survey but the survey is actually a sham that no one takes seriously. No one sees or audits these surveys and no listener doing a survey who hears a song during as survey can reasonably identify songs unless they are on the current hit list and that covers only a tiny part of the music played on radio. For example in PR the survey work is contracted to a firm that cannot be identified because that is confidential (per ASCAP manager in Puerto Rico, Ms. Santiago on television interview).
Fuste Opinion Page: 21-18
Fuste text: Southern Music’s claim to the songs Génesis and Apocalipsis in the United States ended with the original term of copyright
Error: Wrong. Prior to plaintiffs, owner was PHAM (per copyright registration). If PHAM was owner at renewal time is a mater of speculation, since that GVL to PHAM assignment may have previously expired due to Mexico law limitations on length of allowed assignments. Per Mexico law, assignments cannot be perpetual as in the US. The GVL assignment to PHAM has no express provision for the duration of the assignment. Since the contract has n time provision and the current limit for duration is 5 years, it is possible that PHAM rights on the songs ended many years ago, perhaps in about 1975, if the law in affect was identical to the current law for duration.
Mexico Law at present:
Fusté admits that the Peer 1997 assignment request was rejected, thereby plaintiffs retaining ownership
Fuste Opinion Page: 22-1
Fuste text: The offers were not accepted by Plaintiffs.
Error: Fuste doe not say that the 1997 assignment request offer $3.00 total (1 per each of three groups of songs). That is not an "offer".
in 1997, an implicit agreement was reached between
Peer and the heirs: The songs rights belonged to the
heirs, regardless of what ocurred before that
Fuste Opinion Page: 22-15
Fuste text:: Southern Music did not present evidence demonstrating the actual number of songs it has registered with ASCAP. Tr. at 822:4-8 [Testimony of P. Jaegerman].
Error: Fuste did not ask why such important evidence was omitted from the discovery process.
See here for the Peemusic theory that Plaintiffs had no right to information, something that did not disturb the judge.
Fuste Opinion Page: 22-18
Fuste text: Peer first requested that ASCAP stop licensing Génesis in the United States
Error: Peer could only inform ASCAP that they no longer owned the song and as such could not give ASCAP such a command, where it only mentioned the US, since that could be interpreted that Peer still authorized ASCAP to allow it sub licensers to continue licensing the song through the authority received in the U.S. by a U.S. company. So the statement of Fuste means that Fuste did not grasp the meaning of Peer actions.
Fuste Opinion Page: 23
Fuste text: it is Peer’s practice to contact the heirs to attempt to obtain an assignment of the renewal term of copyright.
Error: Fuste should have added "without telling heirs what is going on" or that the songs entered a renewal term, as they did with GVL heirs.
Fuste Opinion Page: 24
Fuste text: Peer granted Disco Hit a “blanket” license
Error: No such license was ever granted to Disco Hit. A non-transferable license issued by Peermusic to a company named Aponte Distributors and was issued in 1989 and Disco Hit commenced operation in 1994 and has never receive a license for any GVL song.
Error: Fuste fails to mention that such a blanket license may be worthless because blanket licenses do not mention specific songs. Fuste also fails to mention that Peer had the opportunity to clarify their alleged non existent licensing to Disco Hit and remained silent. That silence in part provoked this lawsuit and if it was not for the lawsuit plaintiffs would know nothing about the Peer license to Disco Hit. Also no license was ever issued to Disco Hit
Error: Because of the judge's disparate decision, Disco
Hit continues to infringr the rights of plaintiffs. Both
Disco Hit and Peer are fully aware that they continue to
infringe the rights of heirs. See sample
here, of a CD purchased on 3-20-05 at a Walgreen
pharmacy. The infringed song (Borre tu amor) was taken
by Peermusic from Guillermo Venegas first and now from
his heirs. And the judge decided not to put a
stop to the thievery.
Fuste Opinion Page: 24
Fuste text: The songs Borré tu amor and Mi cabaña appeared in Peer’s catalog, though Peer admits that these songs do not belong to it.
Error: The Fuste text means that these songs were in fact infringed, but no such decision was made and thus no damages were awarded. These songs are in Disco Hit recording, Fuste said Disco Hit got a blanket (has no song names) license from Peer and disco Hit said they paid Peer for the recordings. We repeat, Fuste decided that that there is no infringement and damages were not awarded for the ilegal use of these songs. Fuste contradicts himself. Also no license was ever issued to Disco Hit.
Fuste Opinion Page: 24
Fuste text: None of the other above-listed songs, however, are identified on the blanket license from Peer to Disco Hit
Error: A license is blanket when it does not name songs. So the comment that none of the songs are identified is nonsense. Also no license was ever issued to Disco Hit.
Fuste Opinion Page: 24-20
Fuste text: The songs Borré tu amor and Mi cabaña appeared in Peer's catalog, though Peer admits that these songs do not belong to it.
Error: Clearly these are two stolen songs. Peer stole the songs from GVL "without the author suspecting" and put it in their catalog. The judge erred in not taking this into account in his decision not to rescind the other highly questionable "without the author suspecting" songs and in his absurd award of $5,000 in damages against Peermusic.
Fuste Opinion Page: 25
Fuste text: However, Peer stopped issuing royalty reports in 1993 and did not provide any such royalty reports to Plaintiffs until discovery in this litigation.
Error: Fuste never says if this is right or wrong and that helps Peer.
Error: Peer never proved it had sent any royalty reports or royalty payments at any time prior to 1993.
Fuste Opinion Page: 26
Fuste text: However, the ACEMLA performance blanket license does not specifically mention any song.
Error: But Fuste did not say the same thing of ASCAP. Bias to help Peer look less bad.
Fuste Opinion Page: 26
Fuste text: Defendant Chávez-Butler assigned all her copyrights to LAMCO on October 16, 1996.
Error: Fuste fails to mention that she had no copyrights and she could not have assigned any copyrights to LAMCO, making the transaction an illegal one. This makes the estate-executor and ACEMLA look less bad.
Fuste Opinion Page:
Fuste text: The licenses allowed the radio stations to perform any of the songs owned by LAMCO. However, the ACEMLA performance blanket license does not specifically mention any song. Instead, a brochure list of composers affiliated with ACEMLA was provided to the various broadcasters.
Error: Fuste in nonchalant (marked by lack of concern) about this method of fraudulent operation by ACEMLA.
Fuste Opinion Page: 26- 4
Fuste text: Defendant Chávez-Butler assigned all her copyrights to LAMCO on October 16, 1996..
1. On 1-28-00 a Puerto Rico court (Appeals) decided that if Chavez had any rights, she ceded those rights to the Venegas children through a signed agreement. She appealed, claiming that with that decision she would loose her rigths to renewal period songs. Yhe appeal was rejected.
2. Fuste dos not mention anywhere in his decision that Chávez-Butler did not have any rights at the time, as decided by the Puerto Rico courts..
Fuste Opinion Page: 26
Fuste text: The total performance royalties paid to ACEMLA were $260,432; however, this included Génesis and the entire ACEMLA catalog from the period of 1993-1998.
Error: Absurd proposition. Only six songs had been used during the 1993-1008 period, so the payment was for the six used songs only.
Fuste Opinion Page: 26-15
Fuste text: LAMCO and ACEMLA issued a retroactive license to Banco Popular de Puerto Rico (“BPPR”) on November 6, 1998. This license included a mechanical license for Génesis for BPPR’s Christmas Special CD and
Error: Fuste says elsewhere (75-4) that plaintiffs did not show that the song Genesis was actually performed on the BPPR’s Christmas Special. This anomaly of Fuste justified his omission in awarding an additional $43,000 r more, (depending on the deductible expenses related to the $260,000 payment of BPPR) in damages to plaintiffs.
Fuste Opinion Page: 26
Fuste text: LAMCO issued a mechanical license to Sonolux for the songs Desde que te marchaste and No me digas cobarde.
Error: The records (CD's) were by Sonolux and ACEMLA was paid $67,912 in royalties to ACEMLA, The amount paid to ACEMLA means that about 1,000,000 records were manufactured by an illegal authorization (as determined by Fuste himself) of ACEMLA and in the end Fuste did not find any infringement by ACEMLA. As a result, had the obvious infringement been seen by the judge an award of $300,000 ($150,000 x 2 songs) should have been made to plaintiffs. The maximum stipulated in the law ($150,000) per infringed song should have been awarded because along with the infringement there was theft of ownership of the rights (the stoten songs were copyright registered by LAMCO as their own) and it was not mere usage.
A total disregard by Fuste of plaintiff's right to a proper damage award.
Fuste Opinion Page: 27-1
Fuste text: Thus, for the mechanical and performance licenses together, LAMCO 1
Parties received $59,768.83.
Error: But Fuste contradicts himself by saying elsewhere that the license was for the entire ACEMLA catalog and omits any damages for the "performance" infringement.
Fuste Opinion Page: 27-1
Fuste text: Sonolux paid a total of $67,912.92 to LAMCO for this license; however, these moneys subsequently were reimbursed to Sony/Sonolux.
Error: And the returning of the money made the infringement all right? Absurd. The records (CD's) were made by Sonolux and ACEMLA was paid $67,912 (page 27-1) in royalties to ACEMLA, The amount paid to ACEMLA means that about 1,000,000 records were manufactured by an illegal authorization (as determined by Fuste himself) of ACEMLA and in the end Fuste did not find any infringement by ACEMLA.
Error: Fuste (nor anyone else) ever inquired as to why no share of the royalties was ever paid to the Venegas plaintiffs, if ACEMLA claimed to own own the songs because Chavez assigned her alleged partial rights to her (this is what ACEMLA told Sonolux) or if GVL had assigned the rights to ACEMLA when alive (this is what ACEMLA claimed in court, as part of their switching argument tactics).
Error: No sanction was ever imposed to ACEMLA for lying to the court that GVL assigned rights to them when in fact they were claiming to Sonolux that they acquired their alleged rights from Chavez..
Fuste Opinion Page: 27-3
Fuste text: Specifically, Sonolux deducted the same sum from other royalties due and payable to LAMCO. 1. Songs in Original Term LAMCO registered the following songs not in their renewal term: (1) Desde que te marchaste, (LAMCO’s Registration PA 948- 669, 3/19/99)
Error: This and all the ACEMLA registrations may constitute criminal infringement and Fuste is nonchalant about it.
Fuste Opinion Page: 27-6
Fuste text: LAMCO registered the following songs not in their renewal term
Error: LAMCO registered 80 songs ( not 11 as stated by Fuste) a fact not mentioned anywhere in the judge's opinion.
Note: Whatever copies of the songs were included by ACEMLA-LAMCO in their copyright registration filings constituted infringement of owner rights because the copies were not authorized by the owners of the rights, the plaintiffs. This infringement went unnoticed by the judge.
Fuste totally ignored the violation of
plaintiff's right to be the sole registrants of
the songs they own.
Fuste Opinion Page: 27- 29
Fuste text: LAMCO’s claim of ownership depends upon a document signed by GVL during his lifetime, the legal effect of which is disputed by the parties. 31
Error: Wrong. Lamco's primary claim to ownership was an assignment from the estate-executor. After that collapsed in court, the so called GVL assignment was raised by LAMCO. The explanation given by Fuste, while technically correct, helps ACEMLA image. Fuste showed bias here.
Note: ACEMLA said in Peer vs, LAMCO
(Perez Gimenez) that the SPACEM songs were in it's
catalog by mistake. Some mistake!
Fuste Opinion Page: 27-29
Fuste text: LAMCO’s claim of ownership depends upon a document signed by GVL during his lifetime,
Error: While Fuste says the ACEMLA document is not valid. he is otherwise nonchalant about the attempt of robbery. Why doesn't Fuste say that since ACEMLA copyrighted the works and plaintiffs did not complained about it and the document ACEMLA used was too old, it was too late to reclaim the songs as he did the Peer situation. Why the bias?
Fuste Opinion Page: 28-1
Fuste text: The document on which LAMCO relies for its claim of ownership to eight songs written by GVL states “I CERTIFY: Those works detailed above belong to me, Guillermo Venegas Lloveras.
Error: Fuste simply states that the fact that ACEMLA's claim is not valid, he can leave it there. But the ACEMLA tactic could be construed as an attempted appropriation (criminal infringement: appropriation - not using) and Fuste is nonchalant about the appropriation and has not awarded anything for infringement.
Fuste Opinion Page: 28-4
Fuste text: The document is written on Defendant LAMCO’s letterhead
Error: Wrong. The document may not have been written on LAMCO letterhead and it could easily be be a forgery where the LAM letterhead was added. The original was never shown to Fuste. Note: The spacing of horizontal asterisks may suggest he document is a forgery.
Fuste Opinion Page: 28-9
Fuste text: In 1999, LAMCO Parties registered copyright claims for 140 songs in their original term that were written by GVL.
Error: This is not true. If that was said by anyone it is perjury. ACEMLA made copyrights registration on 1-8-97 (PA-835-281 for 33 songs), 3-16-99 (PAu-2-400-743 for 11 songs and 3-19-99 (PA-946-618, for 18 songs). If ACEMLA registered 140 songs then there are copyright registrations that plaintiffs know nothing about and ACEMLA did not present all documents for discovery (perjury?).
Error: Fuste is nonchalant about an
Fuste Opinion Page: 28-15
Fuste text: LAMCO’s retroactive license for performances by ACEMLA to BPPR in 1998 identified six songs, including Génesis, and covered the years 1993 through 1998, for a total amount of $260,432.
Error: But then he contradicts this by saying the performance license was for all songs in ACEMLA catalog simply because ACEMLA said so after using an accounting gimmick so as not ta have to pay any royalties.
Note: ACEMLA lawyer sent a motion to the court after the trial ended on 2-17-04 and before the sentence was issued to argue that the license to Banco Popular was for the entire catalog. Caro's motion is clear.... Banco Popular only used a few songs out of that catalog, a catalog that is fictitious because it has never been issued to licensees.
Note: Under ACEMLA own arguments ACEMLA
had only a factional ownership of the song
Genesis. In spite of this ACEMLA parties never
shared any of the song's income with plaintiffs.
It would also mean that in addition to sterling
song rights, ACEMLA stole the income of the songs
by keeping all the money. Strangely judge Fuste
makes no mention of this fact in his opinion and
gave no punishment. Any other judge would have
scolded and punished ACEMLA for their fraudulent
Fuste Opinion Page 28-15
Fuste text: LAMCO’s retroactive license for performances by ACEMLA to BPPR 1998 identified six songs, including Génesis, and covered the years 1993 through 1998, for a total amount of $260,432 in royalties (one sixth of which would be approximately $43,405.36). Plaintiffs’ Exh. 176; Tr. at 472:25 - 473:5 [Testimony of L. Raúl Bernard].
Error: It is clear: Bernard said the Banco Popular license is for 6 songs. But Fuste says elsewhere that it was for the entire ACEMLA catalog. Fuste contradicts himself. Since ACEMLA did not deduct expenses, the entire amount of $260,432 should have been awarded to plaintiffs.
Error: Of this money, none was awarded to plaintiffs because, the judge says, plaintiffs did not prove that the song Génesis was actually performed. Elsewhere the judge says that the song was performed. So the judge contradicts himself so as not to award this money.
Note: The size of the ACEMLA catalog was
never mentioned in the Fuste opinion, a strange
Fuste Opinion Page: 28-21
Fuste text: The retroactive mechanical license from LAMCO to BPPR in 1998 for the song Genesis was for a total amount of $16,363.47. Plaintiffs’ Exh. 176; Tr. at 472:3-16 [Testimony of L. Raúl Bernard]. Civil Nos. 01-1215 & 01-2186 (JAF). Thus, for the mechanical and performance licenses together, LAMCO Parties received $59,768.83.
Note: The above statement is a plaintiff allegation, not a Fuste conclusion.
Error: But Fuste only gave plaintiffs an damage (restitution is a better word) award of $16,363.47 and nothing for the rest of the money. Even under the theory that the money was for the entire ACEMLA catalog, at least some or all of the money that ACEMLA received for the performance license (a total of ~$260,000 had to be awarded. Plaintiffs may be due all the performance licenses money because aCEMLA did not present that deductible expenses.
Error: The payment of $16,363.47 made by Banco Popular covered the sales of phonomechanical products during a 17 month period, starting in Januery 1994 to May 1995. But Banco Popular sold phonomecanical products up to at least 2002, That is abour at least 100 months. It means that the damage award given by Judge Fuste covered only 17 percent of the time period that Banco Popular was selling recordings and had wrongly paid ACEMLA and not the real song owners, the Venegas siblings. This invoice, with a stamped date of 1-8-06, strangely, was prepared by ACEMLA some 9 months or more before Chavez (illegally) assigned any rights to ACEMLA.Strange indeed and this was not detected by anyone during the trial, an even stranger fact.
Fuste Opinion Page: 29
Fuste text: Plaintiffs’ 9
claims of ownership were not adequately pled in Plaintiffs’ original complaint and, therefore, are untimely and prejudicial;
Error: But previous Peer refusals to show whatever documents it had prevented the making of proper arguments.
Very strange claim, a type of lie to the court. After 1997, when Peer requested from plaintiffs the assignment of all prior Peer claimed songs, Peer stopped claiming ownership rights, so therefore Peer knew that the rights belonged to plaintiffs by virtue of their being the heirs, by default, so the rights did not have to be "pled".
Fuste Opinion Page: 29-9
Fuste text: Peer Defendants counter that: (1) Plaintiffs’ claims of ownership were not adequately pled in Plaintiffs’ complaint and, therefore, are untimely and prejudicial; and (2) Plaintiffs’ challenge to the validity of the contracts entered into by GVL and Peer Defendants are baseless.
Error: Fuste never said that these arguments are themselves baseless since at best for Peer, it was the court's responsibility to analyze those challenges. The validity of the assignments is an issue that needs to be decide if the 1997 assignment request from plaintiffs meant nothing in terms of ownership (see Fuste comment) . Fuste avoided mention of the 1997 assignment request (see Fuste comment) , an important issue in the case, since after that assignment request plaintiffs had no reason to question plaintiff's own ownership. Also plaintiff's attorney, Benicio Sanchez Rivera wrote a letter to Peer to resolve any pending issues, and the letter was never replied to (Peer has admitted receiving the letter).
The Peer allegation that "Plaintiffs’
claims of ownership were not adequately pled in
Plaintiffs’ complaint" is nonsense since
plaintiffs presented a copyright registration that
covered all the song for which plaintiffs claimed
ownership. The fact that there clear error and
double registrations in our copyright can be
traced to Peer failure to inform and the failure
of the copyright system when searches were made at
Fuste Opinion Page: 29
Fuste text: which cannot possibly be granted at this juncture
Error: Fuste never mentions the fact that Peer withheld important information from heirs prior to the case and during the case so as to defeat Peer arguments.
Fuste Opinion Page: 29-17
Fuste text: Peer Defendants aver that in September 7, 2003, Plaintiffs included a host of theories or claims against Peer Defendants’ ownership in their Pre-Trial Order that they did not allude to in their complaint.
Error: Again Fuste forgets that in 1997 (see Fuste comment) Peer asked for assignment to all songs from Plaintiffs. That established that the owners were plaintiffs. Therefor plaintiffs did not need any theory to claim to be owner. The reason for presenting
Fuste Opinion Page: 30
Fuste text: as long as amendments do not unfairly surprise or prejudice the defendant
Error: Defendant Peer, better than plaintiffs knew all along what they were doing. The surprises that developed during the case were our surprises, not Peer's.
Fuste Opinion Page: 30
Fuste text: they must always exhibit awareness of the defendant's inalienable right to know in advance the nature of the cause of action being asserted against him.”
Error: How could Peer not know in advance that plaintiffs could make additional claims if they knew of their criminal and fraudulent acts and not we.
Fuste Opinion Page: 31
Fuste text: have incidental power to hear and decide claims of title which necessarily bear upon the ultimate question of infringement
Error: Fuste ignored the presented evidences and is totally biased towards Peer and ACEMLA. Fuste makes no mention of document 1387 (below).
Fuste Opinion Page: 31
Fuste text: Contract law governs the assignment of copyrights.
Error: But Fuste ignored that Peer consistently violated its contract and that their contracts are unjust (something for nothing).
Fuste Opinion Page 31-12
Fuste text: As such, in order to determine the extent, if any, of the alleged copyright infringement against Peer Defendants, we must first consider the various ownership claims to the songs here.
Error: Fuste then proceeded to ignore our claim that in 1997 Peer, after refusing to show proof of ownership other than a 1952 contract without song names, requested an assignment (see Fuste comment) from plaintiffs for the very songs it now claimed. So the various claims were not considered and the most important one was ignored to the point it is not even mentioned by Fuste.
Fuste Opinion Page: 32
Fuste text: We find no reason to void the choice of law Civil Nos. 01-1215 & 01-2186 (JAF) -33-
provision in the 1952 Agreement, and find that Peer Defendants meet the requirements of Walborg. Accordingly, New York law applies to Plaintiffs’ claims for rescission here.
Error: The choice of laws provision in the contract is very prejudicial to local puertorican composers who cannot file complaints in local courts with spanish speaking lawyers. In Puerto Rico the first item in the judges code of ethics is that no injustice shall be allowed. Under this precept of no injustice shall be allowed, no Puerto Rican judge would make the decision that Fuste made, which would oblige claimants to sue in new York. Yet Fuste says his decision is based on PR jurisprudence.
Note: The New York statute of limitations may not be applicable, because one of the parties, ACEMLA claimed the all the same songs (and still did during trial - see web page) and ACEMLA parties never agreed to a New York law stipulations or to any stipulation with plaintiffs, who never signed any agreement with ACEMLA.
Fuste Opinion Page: 32
Fuste text: provided the chosen jurisdiction has a substantial connection to the contract
Error: But Peer is now a Los Angeles company and plaintiffs are not in New York. Anyway Fuste decided that there was no recession based.
Fuste Opinion Page: 32-9
Fuste text: Walborg Corp. v. Tribunal Superior de Puerto Rico, 104 D.P.R. 184 (1975), sets forth the law governing choice-of-law provisions in Puerto Rico.
Error: Fuste did not apply New York law in determining if:
a. The 1997 assignment proposal from Peer (see Fuste comment) constituted a de facto statement that Peer considered plaintiffs owners of the songs.
b. If document 1387 (below) constituted fraud or robbery and what was NY statute of limitation for those acts.
c. If NY laws prohibited totally one sided contracts and what is the statute of limitation for rescinding such contracts. For example if slavery is prohibited by law and a contract creates a slavery it cannot be rescinded because the contract is older than the statute of limitations?
Note: The assignment request by Peer in
1997 (see Fuste
comment) is well documented on GVL Facts
presented to the court on 12-19-03 by plaintiffs.
Fuste Opinion Page: 31-16
Fuste text: Peer Defendants maintain that courts in this district have routinely upheld the validity of choice-of-law clauses and have applied the parties' designated state law.
Error: But routinely does not equate to always.
Fuste Opinion Page: 32-24
Fuste text: We find no reason to void the choice of law Civil Nos. 01-1215 & 01-2186 (JAF) -33- provision in the 1952 Agreement, and find that Peer Defendants meet the requirements of Walborg.
Error: But the 1952 agreement expired and songs are now claimed on the basis of a letter that requires Peer signature and does not have it and is clearly fraudulent.
Fuste Opinion Page: 33-2
Fuste text: Accordingly, New York law applies to Plaintiffs’ claims for rescission here.
Error: But does one has to take another case, for rescission only, to New York state court?
Fuste Opinion Page: 33-5
Fuste text: Peer Defendants claim that Plaintiffs’ contract claims are barred under New York’s applicable six-year statute of limitations.
Error: In 1997 (see Fuste comment) Peermusic made plaintiffs an offer so plaintiffs would assign Peer rights to all the song they now claim and some they do not claim. If the rights to the music belonged to plaintiffs, why did plaintiffs need to file a lawsuit against Peer to rescind any assignments at that time? The only possible reason to request rescission then would have been that plaintiffs had to think that Peer was trying to trick plaintiffs or giving plaintiffs wrong information about the ownership and they would change their mind. But then plaintiffs had no reason to suspect any those possibilities - that Peer would backtrack and reclaim ownership. If plaintiffs sued Peer for rescission in 1997 Peer would have said that they had recently proved that they considered plaintiffs owner, when they requested assignments and that the lawsuit was frivolous. Plaintiffs only concern then was to recoup unpaid royalties from Banco Popular, not worry about any ownership issue. It is during the lawsuit phase that Peermusic backtrack and reclaims the songs. It would have been senseless for plaintiffs to ask for rescission under the comfortable belief that plaintiffs were owners of all the songs, as confirmed by Peer itself. The basic facts around this request for assignments by Peer was presented at trial, therefore Fuste knew or should have known. A hypothesis as to why Peer backtracked is easy to develop. Once they were sued, they had a big problem because they did not own the songs.
Note: The assignment request by Peer in 1997 (see Fuste comment) is well documented on GVL Facts presented to the court on 12-19-03 by plaintiffs.
Error: My interpretation is that the songwriter contracts assign the songs to publishers for the length of time they perform as publishers by successfully promoting and exploiting the assigned songs. Fuste goes to great length in discussing the issue, but misses the basic point. Clearly to rescind a contract on the basis of non performance during an old period of time only may be a problem if that time period of non performance is before the statute of limitations period. But if the non performance is within the statute of limitations period then it follows that the statute of limitation argument is ineffective. For example, Peer has not issued a license for a new recording for any of the non-PHAM songs within the last 6 years (to use NY statute of limitations). Therefore the contract may be rescinded for non performance. Same goes for non payment of royalties, my logic tells me.
Fuste's decision means that contracts cannot be rescinded if they are older than the statute of limitations. It sets the ambient for a contractor that has no intention of fulfilling contract obligations permanently will decide to fulfill the obligations only during the statue of limitations period. Then afterwards there is no way to the contract can be rescinded because the contract is older than the statute of limitations and the allegation will be that the rescission had to be requested during the statute of limitations period.
Error: New York contract law stipulates:
§ 202. Cause of action accruing without the state. An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
According to this the applicable limit is the 15 years under Puerto Rico law.
Taxes: According to the Fuste theory of statute of limitations if a person did not pay taxes for the last 20 years and the statute of limitations for that laws violation is 5 years, then the tax evader cannot be charged with anything because the evader commenced the violation over five years before. Additionally the evader does not have to pay any future taxes because the evader can never be charged with tax evasion. Peermusic's action of not paying royalties is an evasion of a fiduciary duty, just like not paying taxes.
Fuste Opinion Page: 33-14
Fuste text: The plaintiff was aware that he was not receiving any royalties or sales reports decades ago,
Error: This is a jurisprudence quotation by the Peer and the judge. It is absurd to propose that because GVL did not sue Peer for contract breach, his heirs could not sue for the same reason for breach of contract within the last 15 years, the Puerto Rico statute of limitations. This is a wrong interpretation of jurisprudence that would mean that the legal right of plaintiffs to be paid as beneficial owners was forfeited by a GVL inaction that may not even have ocurred under the (correct) theory that all assignments to Peer ended in 1964.
Note: It is not until year 2000 that plaintiffs were declared owners of the rights by Puerto Rico courts and when plaintiffs made claims for payment of the Genesis income from Banco Popular plaintiffs were ignored.
Any way this is a moot comment if Fuste
knew his beans about rescission. See
Fuste Opinion 33-5
Peer Defendants claim that Plaintiffs’ contract claims are barred under New York’s applicable six-year statute of limitations.
Error: This is a wrong interpretation. New York's rule is that the statute of limitations of the jurisdiction where the offended party lives, Puerto Rico, 15 years.
Error: Even by New York's limits Peer contract breach claims could be made because Peer did not pay royalties in the 6 years period prior to the lawsuit filing.
Fuste Opinion 33-8
Fuste: (dismissing 8 claims by songwriter’s heirs against music publisher for breach of contract for failure to pay royalties as barred by the six-year period of limitations)
Error: The Fuste argues that the contract cannot be rescinded for non payment. The logic fails here because the non payment issue must a two parts analysis or issue:
a. How much royalties were received from the music business players within the last six years (six-year period of limitations) .A fraction of this income is the money that had to be paid as royalty by Peer.
b. Of the royalty amount that had to be paid, how much was actually paid within the last six years (six-year period of limitations).
Fuste skipped the first and most important by far issue and goes to the second issue and cites a NY case that deals with the issue, a far less important issue and decides de rescission question with it.
In our case the non payment of royalties in this case is basically trivial because there was no royalty income from recording. So there was hardly anything to pay or reason to make a payment claim. It should be noted that after the 1997 assignment request from Peer (see Fuste comment) plaintiffs never asked about these royalties because plaintiffs did not expect any real money.... plaintiffs knew that very few Peer songs records were being sold (and plaintiffs thought that the Disco Hit license did no exists because Peer never replied to inquiries about it). Plaintiffs were only interested in the money Peer collected from Banco Popular because plaintiffs though that many thousands of dollars had been collected (if a reasonable price had been charged). Regarding the non performance issue (records made/sold) plaintiffs had no concert because plaintiffs felt they were owners and did not have to litigate old issues that were going to lead nowhere economically.
So the non performance is due almost
100% to failure to perform in the music publishing
business, not that it did not pay. For example,
there are songs that never generated any income,
be it from performance or mechanical. So the Peer
defense could be that there was no payment because
here none to be made. Certainly if GVL went to
court requesting a rescission of assignment of the
based on the non payment of royalties within a 6
year period after assigning the song, Peer would
have said that there was no royalty payment
because there was no income because no one
recorded the song. The court, if were consistent
with Fuste would tell GVL he had no right to
rescission because he could not claim non payment
when there was no payment to be made. Clearly a
proposition that defies logic.
Fuste Opinion Page: 34-22
Fuste text: Consequently, we will apply New York’s six-year statute of limitations to the contract issues in the case at bar.
Error: But there is no contract. Peer depends on a 1964 letter agreement for the assignment of the songs and Peer did never signed the letter of agreement and that failure makes the agreement null.
Error: Per New York law, the statute of limitations that shall apply is the if the residence of the claimant, Puerto Rico. Puerto Rico has a 15 year stute of limitations for contract breac claims.
Theory: No one at Peer dared to sign the letter of agreement because it was a fraudulent document (page 1 was switched after GVL signed page 1 only) that was made up at the same time that Peer was to obtain the same songs in the letter of agreement "without the author suspecting".
Fusté Error: Venegas heirs have not pressed ACEMLA
Fuste Opinion Page: 35-20
Fuste text: Moreover, Plaintiffs have not pressed their related claims of copyright ownership against co-Defendants LAMCO and Chávez-Butler since GVL’s death in 1993.
Error: This cannot be believed. Its is as if he knew nothing of the Arecibo case which Fuste himself cites in his opinion. This denotes a total lack of impartiality of judge Fuste.
Important: This perversion of the truth is made by Fuste, out of own volition. If anyone had said it during the trial or in a deposition it would have been perjury.
Then we must erroneously
conclude erroneously that plaintiffs :
Theory: Fuste's purpose in his comment is to justify the low damage (and non existent for most infringed songs) awards against ACEMLA. It is actually a lie made up by the judge himself.
Theory: Omissions made because it did
not fit the story line that Defendant was not
guilty of wrongdoing. Differnetly: A help to
Fusté on rescission - got it backwards
Fuste Opinion Page: 36-1
Fuste text: Plaintiffs have proffered no rationale that would suggest that their rescission claims survive until the present.
Error: Absurd. The following was presented to the court:
a. Proof that in 1997 Peermusic asked plaintiffs (heirs of GVL) to assign all songs in the Peermusic catalog to Peermusic as if the songs belonged to plaintiffs. Plaintiffs refused to make the assignments.
b. That the 1964 agreement where allegedly songs were assigned to Peermusic was never accepted and signed by Peermusic as require and that Peermusic never presented this document when the plaintiffs asked Peermusic for the proof that GVL had really assigned the songs.
c. Proof that Peer has not paid any royalties to plaintiffs since the death of GVL, for over 10 years.
d. Proof that the song Borracho Sentimental was not composed by GVL, so Peer cannot own this song because GVL assigned it to Peer. If this song was not rescinded no other song could be rescinded by the judge no matter what argument or evidence was produced, evidently.
e. Proof that Peermusic intended to and did acquired many songs "without the author suspecting".
f. That Peermusic has not promoted the music of GVL as was required by the alleged assignment.
g. That Peermusic claimed that the heirs of GVL had no right to information, meaning that the plaintiffs had no right to know how the songs were assigned to Peermusic.
Note: Judge Fuste also overlooked the LAW fact that when he published his opinion the plaintiffs had, anyway, the right to rescind the contract through a Copyright Law process called termination and this made his decision not to rescing ACADEMIC. See letter to Peermusic from plaintiffs terminating all assignments.
Fuste Opinion Page: 36-13
Plaintiffs object to contract negotiations that occurred during the 1950s and 1960s.
Error: Not true. No one objected to any negotiations at all. Plaintiffs objected to Peer claims of ownership for several reasons among which was the suspiciousness of the documents written in he 1950s and 1960s, such as 1387, where it was made clear that Peer was to obtain GVL "without the author suspecting".
Fuste Opinion Page: 36
Fuste text: extraordinary delay in raising any claims regarding the 1952 and 1964 Agreements,
Error: There was no delay since plaintiffs knew nothing of document 1387 and the so called 1964 agreement until this case started and the 1952 agreement ended many years. Anyway rescission may be academic if no contract survives today and the 1964 letter agreement is invalid because it is not signed by Peer, includes one or more songs not composed by GVL and was made at the same tie as a letter requesting the acquiring of songs without the author suspecting and none of this is mentioned by Fuste.
Fuste Opinion Page: 36
Fuste text: the persons who managed Peer Defendants and their artists in the 1950s and 1960s, are deceased.
Error: Yes, but they left condemning letters which Peer itself presented (document 1387 (below)) and Fuste ignored. .
Fuste Opinion Page: 36-19
Fuste text: disputes copyright ownership that remained uncontested for over four decades
Error: Peer ignore the fact that GVL contested the ownership of several songs and may have never known that Peer claimed other songs GVL knew nothing about because no royalty statements were made or the stamens did not mention the sing names. No proof was presented to show that GVL received any royalty statement with any song name. So if GVL did nor know that Peer was claiming certain songs how could he complaint about it. Since Peer never licensed new recordings of whatever songs may have been assigned directly to Peer he never saw a new recording and thus could never suspect that Peer was licensing those songs.
According to this theory if Peer took,
20 years ago a great, timeless song from an
Argentina composer who had previously signed a
blanket contract, "without the author suspecting"
and registers that song at the Copyright office
and adds that song to a list of songs in a two
page document with no signature on the song list
page, then a Peer claim of ownership cannot
be challenged and the song belongs to Peer.
Fuste Opinion Page: 36-20
Fuste text: The delay has severely prejudiced Peer Defendants
Error: This is inverse logic and a stupid remark by Judge Fuste meant to hurt plaintiffs. The delay by Peer in coming clear to plaintiffs was strategically planned by Peer by its actions to hurt plaintiffs. This must be seen in light of Peer lawyer Barry Slotnick comments that Peer did not have to give information to plaintiffs.
Fuste Opinion Page: 37-2
Fuste text : Plaintiffs seek rescission of the 1952 Agreement claiming it null under several theories, including intimidation and deceit, and lack of licit consideration, all under Puerto Rico law.
Fuste Error: Does not consider the fact that in 1997 Peer requested an assignment (see Fuste comment) from plaintiffs. Actually Fuste could have said that since 1997 Peer did not own any rights to the songs and therefore rescission was not required.
Note: The assignment request by Peer in
Fuste comment) is well documented on GVL
Facts presented to the court on 12-19-03 by
Fuste Opinion Page: 37
Fuste text: plaintiffs unreasonable delay resulted in defendants inability to adequately defend the action,
Error: Again, inverse logic. I went to Peer to allow them to justify their ownership and it was Peer that stonewalled and delayed the defense of their alleged ownership.
Fuste Opinion Page: 37-12
Fuste text: Under Walborg, choice-of-law provisions are generally valid provided the chosen jurisdiction has a substantial connection to the contract, and unless the provision is against public policy.
Error: What is public policy? The code of ethics of Puerto Rico judges start by saying that injustices shall no be allowed. That sounds like public policy. Obliging a spanish speaking composer to get a New York lawyer to carry a case against a Goliath California Company will result in an injustice because there is no way the composer can prevail regardless of the merits of his case. To get to the local federal court is hard enough.
Fuste Opinion Page: 37-4
Fuste text: and key records were lost - finding evidentiary prejudice as a result of lost evidence, lost witnesses, and faded memories
Error: Then the logic is simple: If a publisher cannot prove they own a song because a key document was lost, then they cannot claim the song for lack of proof and the song belongs to the composer.
But a music publisher that looses their
proof looses their rights. Put differently: The
natural ownership of a copyright is the author or
his successors. If a publishes claims ownership
but claims that they cannot defend the ownership
because the old guys died or the documents were
lost, then the have lost whatever right they had,
possibly by not insuring that the claims could
survive time, fire, deaths, etc. This should not
operate against the author or successor. It must
operate against against a possible claimant
(publisher) and not against a sure claimant, the
composer, because the law says implicitly that the
composer is the owner unless a written assignment
Fuste Opinion Page: 38-18
Fuste text: We disagree. Rescission is appropriate when “the complaining party has suffered breaches of so material and substantial a nature that they affect the very essence of the contract and serve to defeat the object of the parties.”
Error: But did Fuste conclude that Peer did what it contracted to do? Incredible statement by the judge.
Non payment as reason for rescission
Fuste Opinion Page: 39-2
Important: The non payment of royalties
may have these elements which Fuste did not
From 1997 to present there is a
good reason for Peer not to pay royalties: They
were acting as if they did not own the songs and
rightly were not promoting the songs. The fact
that it later turned that the songs were still in
BMI catalog and BMI was
generating a little bit of royalties to Peer is
because, as admitted by Peer, the do not notify
BMI that they no longer control the works and it
was Plaintiff that had to go to BMI to do that.
The fact that Peer tried to gain control of the
songs, as stated in the Peer facts and as stated
by Rafael Venegas in testimony, is proof that
songs were owned by plaintiffs.
Fuste Opinion Page: 39-14
Fuste text: The relevant case law reveals that the pertinent question is whether the contract has been complied with at all,
Error: But Peer has not complied with the contract at all for the many songs it has never got a single recording made for possibly all songs (PHAM songs excluded).
Fuste Opinion Page: 39-18
Fuste text: In the case at bar, Peer Defendants have shown, and Plaintiffs have not controverted, that GVL received royalties for Peer Defendants exploitation of the copyrights subject to the contract.
Error: The statement by Fuste is false. Peer never proved that it made any payment to GVL, or that it had paid since 1993 (GVL death) or any time before that, so Fuste is misleading.. Certaily Peers own records show that a number of songs did nor earn any royalties in the 50 os so years that Peer claimed ownership. See THE INCREDIBLE VENEGAS SONG EARNINGS REPORT FOR ~50 YEARS. Surely if there were no earnings, there couls not have been any royalties payments.
Funny thing: Plaintiffs claimed that songs were performed on a Ponce radio station under an ACEMLA license, and defendant ACEMLA did not controvert the claim, but Fuste decided there was proof of it so as to not find infringements against ACEMLA. Funny how Fuste's bias worked in the case.
Note (July 2006): After the trial ended
over, Peer has not paid or offered to pay the
heirs of GVL any royalties for the 1993-2004
period (GVL death to date all songs assignments to
Peer were terminated by GVL heirs in December
Fuste Opinion Page: 39
Fuste text: Defendant Chávez-Butler asserts that Peer Defendants have paid royalties.
Error: The evidence goes beyond inadmissable, as it was never presented. Chávez-Butler nor anyone elses did not show any proof to the court that Peer ever paid to Guillermo Venegas or to plaintiffs, Chávez-Butler was anyway an unreliable and hostile witness to plaintiffs and could have confused PHAM royalties with Peer royalties or the royalty payments could have been many years before GVL died so as to count as a reasonable up to date payments. Actually Chavez never deposed or was a witness in this case, available for interrogation by plaintiffs, so Fuste fabricated the facts.
Fuste Opinion Page:
Fuste text: Plaintiffs are, therefore, not entitled to rescission for nonpayment of royalties.
Error: Absurd. If the music is not recorded there are no royalties to be paid. And GVL songs were not recorded because Peer did not exploit the songs which is what a publisher does.
Fuste Opinion Page: 40
Fuste text: in consideration for the publisher's promise to pay specified royalties
Error: Wrong because it leaves out the main purpose of assignments: the reasonable (in absence of performance requirements) promotion and exploitation of the music. If the music is not exploited the composer would get 50 percent of nothing, Wrong also because publisher contracts usually do nor specific royalties to be paid but percentages or cents per unit. So the main thing is promotion/exploitation and Fuste does not address this issue..
Fuste Opinion Page: 40
Fuste text: mutually enforceable rights and duties.
Error: But how can they be enforced with all the legal traps in the way, as can be seen by this very same case. If plaintiffs now try to enforce the contracts what are plaintiffs to do, order Peer that they must promote the songs and produce results, in which case Peer will send a 10 cent check and say, you see, Peer complied. Absurd.
Fuste Opinion Page: 40-18
Fuste text: In the case at bar, Peer Defendants have shown, and Plaintiffs have not controverted, that GVL received royalties for Peer Defendants exploitation of the copyrights subject to the contract. Moreover, Defendant Chávez-Butler asserts that Peer Defendants have paid royalties. We note that Plaintiffs “may be rendered whole by an award of monetary damages,” Nolan v. Williamson Music, Inc., 300 23 F.Supp. at 1317-18, thus recouping any allegedly failed payments. 24Civil Nos. 01-1215 & 01-2186 (JAF) -40-
Plaintiffs are, therefore, not entitled to rescission for nonpayment of royalties.
Error: Fuste takes as good Chávez-Butler assertion that Peer Defendants have paid royalties. On a deposition on 5-21-09 Chavez stated that GVL never received royalties from any one while living. Then why did Chavez lie to Fuste? Because she spoke to benefit ACEMLA who would benefit if plaintiffs (Venegas siblings) lost in their claims against Peer and because ACEMLA and Pee had a common enemy (plaintiffs) and had to join forces to defeat the Venegas siblings. A fundamental error by Fuste here was taking as good the word (without any documentary evidence) of the person that stole all the music of Venegas for the purpose of giving the music to the company where her current husband (Jose Lacomba) was an vice president. Also Fuste took Peer's word (without any documentary evidence) that Peer paid royalties to Venegas as good.
Error: Fuste rejects the request for recission of a contract for non payment of royalties based on a lie by Chavez.
Fuste Opinion Page: 41-1
Fuste text: As such, we find that the 1964 Agreement is not null for lack of consideration.
d But it is unsigned by Peer (making it invalid), it is unsigned by GVL where the songs are named, it was made by Peer, not GVL and it was accompanied by Peer document 1387 (below).
Fuste Opinion Page: 42-2
Fuste text: Plaintiffs, however, fail to elucidate how the 1952 Agreement was involuntary servitude or denied GVL a minimum salary.
Error: Fuste cannot see something he did not want to see, the obvious. Fuste also fails to see that by not generating royalties, Peer extended the contract period and that was the strategy to make GVL slave of Peer.
Fuste Opinion Page: 42-3
Fuste text: Plaintiffs admit that GVL received an advance of $400 against royalties when he signed the 1952 Agreement.
Error: Clearly false. Peer never submitted any evidence that such payment was made. The 1952 contract says that a payment of one dollar was made by Peer to GVL and from GVL to Peer. So we have two self canceling payments of one dollar. Net for GVL = zero.
Note: The 1964 letter of
agreement (page 1 page 2)
says that GVL returned $412.65, but that is on the
unsigned page 1 of the letter and that was in
1964. This would mean that GVL was returning more
money than what he received and would also mean
that between 1952 and 1964 his songs earned a
negative amount of money ($12.65) in royalties.
Fuste Opinion Page: 42-5
Fuste text: Moreover, Plaintiffs do not allege, let alone proffer evidence, that would suggest that GVL could not
terminate the Agreement in its entirety.
Error: What Fuste is saying is that GVL could have terminated the agreement even though he fails to mention that Peer also "did not proffer evidence, that would suggest that GVL could not terminate the Agreement in its entirety.".
Error: Fuste did not, but could have and should have considered the heir's refusal for assignments to Peer as a termination of the assignments, if they had been valid.
GVL and his successors could have terminated the
agreement in its entirety at any time and that
included the assignment of the songs. Note: GVL heir
terminated the assignments in December of 2005
through a letter to Peer, just in case.
Non GVL, stolen songs, Borracho Sentimental and others belong to Peer because GVL assigned them to Peer, says the judge
Fuste Opinion Page:42-11
Fuste text: Because we find that the foregoing contracts are binding, we necessarily find that Peer Defendants own the songs, in their original terms, included in the agreements here. Those songs include Cien mil corazones; Una canción; Por el camino; No te vayas así; Déjame que te diga; Amor dulce; Cariño; No vuelvas más; Ni a la distancia; Borracho Sentimental; Noche sin ti; Llega la noche; Miedo; Recordación; Nada puedo hacer; Ausencia; No, no digas nada; Tu partida; Cuando me vaya; No acepto olvido. 5. Plaintiffs’ Challenge to Peer Defendants’ Ownership of Renewal Rights. The 1952 Agreement granted Peer Defendants an irrevocable power of attorney from GVL, stating: Composer herein conveys an irrevocable power of attorney authorizing and empowering the Publisher, its successors and assigns to file publication and review the copyright in the name Civil Nos. 01-1215 & 01-2186 (JAF)
Error: In 1997 Peer asked plaintiffs, as owners, the purchase/assignment of all the songs Peer now claimed. The 1997 Peer offer meant that Plaintiffs were the owners.
Eror: Fuste's concusion that "Because we find that the foregoing contracts are binding" is bizarre, considering that Peer has completely not conformed to their contractual obligations in making the music assigned to them make money. See song earnings report here.
Error: 11 of the songs (Cariño; No vuelvas más; Ni a la distancia; Noche sin ti; Llega la noche; Recordación; Nada puedo hacer; Ausencia; No, no digas nada; Tu partida; No acepto olvido) songs were never copyright registered by Peer. These therefore could not have been included in a list of songs Peer owned in the original term, since there was no original copyright term for the songs. See unregistered songs were not, by Fuste, determined to belong to Peer.
Additionally the songs Borracho Sentimental (a song actually stolen from an unidentified songwriter) and Miedo were copyright registered in 1979 and 1981, respectively, and that is well over 25 years after the alleged assignment was made by Guillermo Venegas. It is an established fact that copyright registration made late for the purpose of increasing the duration of copyrights may be invalid or invalid as prima facie proof of ownership. Peer, incredibly explained at the trial that the reason for the delays was precisely to extend the duration of the copyright. Essentially Peer doubled the copyright duration of these two songs by the very late filing for copyright. A clear abuse of copyright.
See 10 Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851, 854 (6th Cir. 1991) (where a work was first published in 1982 and the copyright was registered in 1988, the district court was not bound to accept the validity of the copyright)
It is very odd that judge Fuste uses ficticious, never really made any "timely or otherwise registrations" to reach the conclusion that a number of songs belong to Peer but makes no mention of these alleged timely registrations in his writing (so as not to question Peer's alleged ownership?).
another case (05-12-52 Brown v LAMCO) the same Mr.
Error: The so called irrevocable power of attorney is/was illegal (thus invalid/null/moot) in both Puerto Rico, New York and everywhere else because it was not notarized, as any lawyer would know.
Error: The so called valid (per the
judge) contract that the judge refers to is a 1964
two page (Page 1Page
2) alleged agreement between Guillermo
Venegas and Peer. But this agreement has two fatal
flaws as evidence in favor of Peer:
Erorr: The song Amor dulce came into renewal period in 1998, after the death of the author. Thus it cannot belog to Peer because no valid assignment has been made to Peer after it came into the renewal priod by the heirs of the composer. Fuste ignored these facts. So regardless of the erred judge's decision, the song cannot belog to Peer.
Error: Fuste wishes and is ingenious to believe everything a paper produced by Peer says is true. Therefore Borracho Sentimental belongs to Peer. He also believes Cariño and other songs belong to Peer because GVL gave Peer the rights, even though GVL he did nor compose or own the songs. Note: Peer did nor show a score for Cariño (never copyrighted, recorded, performed, published or royalties paid in 40 plus years, all good reasons for beleiving that there is no such GVL song). We should note that attaching the name of GVL to songs hed did not compose are moral rights violations against the composer and his heirs. These violations went unnoticed during the trial.
(below)), Mas alla (not by GVL per Peer document 0676 - in 1387 (below)), Llega la noche (never copyrighted), Nada puedo hacer (never cpyrighted - in 1387 (below)), Noche sin ti (never copyrighted - in 1387 (below)), Tu partida (never copyrighted - in 1387 (below)), songs Peer has never licensed, plaintiffs have never heard and suspect GVL did not write. But Fuste says they belong to Peer because GVL assigned them.
Note: If Peer ever send royalties to plaintiffs for Borracho Sentimental and plaintiffs take the money, plaintiffs may be contributory infringers with Peer if the real owner of the song shows up and makes a claim.
Error: Judge Fuste specifies each song that belongs to Peer but does not do the same for songs claimed by ACEMLA belong to plaintiffs. Why the different and discriminatory treatment?
Interesting and revealing: Fuste's most and all important decision, that the Peer claimed songs did belong to Peer is not supported by any cited jurisdiction to use the early contract period instead of the last contract period as reference to the 6 year New York statute of limitations issue. Certainly there must be jurisprudence for a common legal situation that will come up anytime wants to rescind a business contract. This is a very weak and vulnerable issue for Peer considering that the issue was not argued one way or another and Fuste decided out of own volition and ERRED.
In the case it was evidenced (Peer doc 1387 (below)) that there may have been fraud. Fuste did not discuss the document in his decision.
Constitutional issue: By decreeing that Borracho Sentimental and other songs for which no proof was tendered that GVL wrote, Fuste is violating the constitutional rights (taking of property) of the real, yet unidentified owner.
Notes about another stolen song:
Peer has alleged that the information that Disdier composed the song was provided by a record company, not Mr. Disdier himself. This means that Peer got the song from the record producer and not the composer. And all along it was thought that it was the composer who assigned songs to publishers! This is as bizzare as it can get!
Since Peer has never divulged how and from whom they obtained the name of the song BORACHO SENTIMENTAL, a good guess now is that Peer obtained the name and the song from the record producer (and not GVL) who mistakenly thought the composer was GVL.
Fuste's action constitutes de-facto forfeiture.
Forfeiture is unconstitutional as it is, and
attempting to subject private property to
forfeiture for a civil action is beyond
unconstitutional in nature. HINT: FORFEITURE MEANS
YOUR PROPERTY HAS BEEN TAKENAWAY WITHOUT OR
IMPROPER (AS IN THIS CASE) DUE PROCESS OF LAW, AND
YOU HAVE TO GO THROUGH YEARS OF COURT PROCEDURE TO
GET IT BACK, EVEN IF YOU ARE THE REAL LEGAL
Fuste Opinion Page: 42-21
Fuste text: The 1952 Agreement granted Peer Defendants an irrevocable power of attorney from GVL, stating: Composer herein conveys an irrevocable power of attorney authorizing and empowering the Publisher, its successors and assigns to file publication and review the copyright in the name Civil Nos. 01-1215 & 01-2186 (JAF) -43-
of the Composer and, upon such renewals, to execute proper and formal assignments thereof, so as to secure to the Publisher, its successors and assigns, the renewal terms of, in and to the said copyrights, works and/or compositions.
Error: Here Fuste here has the posture that the notarized power of attorney is valid, was granted. But the fact is that a non notarized power of attorneys is invalid and an invalid power of attorney cannot be described as granted irrevocable power of attorney. The grant was not legal, was not valid. Because it was not valid, it did nor exist and its irrevcability is moot.
Error: In another place Fuste suggests that the entire contract could have been terminated by GVL. If the contract was terminated then then any granted power of attorney would be terminated too.
Opinion of the author: No person can be
denied the right to revocate a power of attorney,
let alone if the holder of that power turned out
to be a corrupt.
Fuste Opinion Page: 44-11
Fuste text: The presumption against conveyance of renewal rights serves the congressional purpose of protecting authors’ entitlement to receive new rights in the 28th year of the original term.
Error: But publisher destroyed the purpose of the laws by adding something composers could not comprehend. So this makes the renewal clause ok?
Fuste Opinion Page: 44-16
Fuste text: rebutted where the author includes “language which expressly grants rights in ‘renewals of copyrights’ or ‘extensions of copyrights’
Error: Yes, but the contract was not made by the author, but by the publisher, wo decided what to include or omit.
Fuste Opinion Page: 44-23
Fuste text:In the present case, the Agreements between GVL and Peer Defendants explicitly granted Peer Defendants renewal rights to the songs listed in the contracts.
There are three contracts:
1947 for Mas Alla
1952 for unamed songs
1970 for Tu bien lo sabes
So the so called songs listed on the
contracts are just two of the 22 songs Peer
alleged to own.
the so call grant of renewal rights is illegal.
the renewal rights to the song TU BIEN LO SABES
(allegedly assigned to Peer by GVL in 1970) accrued
after the composer died, in 1998, so if anyone could
grant those rights, it was not the composer, but the
heirs of the composer. This is copyright basics that
the Judge did not understand. An interesting story
about the songs whereabouts and exploitation in
Mexico can be read here.
Fuste Opinion Page: 45-5
Fuste text: Peer Defendants aver that the songs Ausencia; Cariño; Llega la noche; Nada puedo hacer; Ni a la distancia; Noche sin ti; No acepto olvido; No, no digas nada; and No vuelvas más were neither published nor registered for copyright prior to January 1, 1978. Thus, they aver, they are not subject to the renewal term reversion provisions of 17 U.S.C. § 304, and Peer Defendants continue to own the copyright for the term of the life of the author plus 70 years.
The Peer Copyright Duration Trick: In trial Peer stated that the reason for their inaction in not registering the song was that this was a "trick" used by Peer to extend the copyright life of songs. Let us call this the "duration trick".Clearly that was a lie (perjury) because Peer was obliged to publish the songs (a prequesitive to be able to exploit the songs, if sheet music is not made available, not publishe, then no recordings and public performances are possible) and before 1978 publishing of songs without a copyright registration meant that the works would pass to the pubic domain, where all copyrights would be lost. Also the use of tricks to extend the life of copyrights as stated by Peer would deny the GVL heirs the rights to renewals and that is illegal. It is obviously clear that the use of tricks to extend copyright life is contrary to the intention of the copyright law that clearly specified the duration of copyrights. Nowhere in the law does it sasy that duration can be extended through tricks.
The Peer Duration Trickis clearly a form ofcopyright overclaiming more than what the Copyright Act gives, a form of copyright misuse, which could result in forfeiture of the copyrights.
Then the question is why did Peer not use the "duration trick" on all the songs? Because it is illegal. See "eternal rights here".
judge swallowing of the Peer perjurious "Peer copyright duration
trick" story line as explained above.
Fuste Opinion Page: 45-8
Fuste text: Peer Defendants aver that the songs Ausencia; Cariño; Llega la noche; Nada puedo hacer; Ni a la distancia; Noche sin ti; No acepto olvido; No, no digas nada; and No vuelvas más were neither published nor registered for copyright prior to January 1, 1978. 1978. Thus, they aver, they are not subject to the renewal term reversion provisions of 17 U.S.C. § 304, and Peer Defendants continue to own the copyright for the term of the life of the author plus 70 years.
Error: So Peer acted against GVL interests by not publishing the songs (publishing required copyright registration at the time), resulting in that GVL was deprived of publishing income and GVL heirs were deprived of renewal rights had GVL died on or before 1992 and now Peer has rights to a longer period od time. Unbelievable that Fuste swallows this in one gulp and finds nothing wrong in the trickery.
Error: 9 of the 10 songs on the Fuste text are also in the document that requests that GVL songs be obtained without the author suspecting. Also Peer has no music score for any of the songs.
To this day Peer has not published any of the named songs, most of which are musical jewels which, apparently, have never generated any royalties from recordings licensed by Peer.
Note: A reason Peer could not copyright
register the songs was that they never obtained a
score and needed additional information from GVL
because of their "get the songs
without the author suspecting" method
of acquiring songs. Fuste did not get it right.
Fuste Opinion Page: 45-14
Fuste text: Plaintiffs do not contest this reading of the Copyright Act.
Error: absurd, not true, but anyway, Fuste should have contested the Peer claim that they did not register the songs as a trick to extend copyright duration of the unregistered songs. See Duration Trick here.
Fuste Opinion Page: 46-2
Fuste text: Further, the U.S. renewal term of copyright had, at GVL’s death, already vested in Peer Defendants, which continue to own the copyright in such songs on a worldwide basis (including the U.S. copyrights) for their full duration, inclusive of U.S. renewal terms.
Error: Fuste seems to be talking about songs that were never published or registered. As such they have no renewal terms, so saying the renewal terms vested on Peer is false.
Fuste Opinion Page: 46-13
Fuste text: “[T]he assignment of the expectancy itself implies a power of attorney in the assignee to apply for such renewal in the author's name.”
Error: But the copyright Act requires the songwriter actual signature. Fuste ignores this. Does not even mention the actual signature requirement. Fuste also ignore the purpose of renewal rights: That authors could get back their works if the assignment did not work to his/her benefit or if the author wanted to negotiate a new assignment with the origial publisher or a new one. Fuste ignores that the whole purpose of renewal rights is defeated when the expectancy of renewal rights is given to publishers in advance and becomes effective even if the publisher does nothing with the work.
Error: Fuste ignores that forging a signature, regarless of the purpose, may be a federal crminal offense.if the forgery is on a document submitted to the federal government.
Fuste Opinion Page: 46-19
Fuste text: “Plaintiffs’ challenge to Peer Defendants’ ownership of renewal term rights on the basis that an extraneous power of attorney was not notarized or registered in accordance with local rules is inapposite."
Error: Fuste doe not explain or give jurisprudence to justify his claim that plaintiff's was "inapposite" (without merit). In other words, this was an arbitrary claim bt Fuste. Of course the main issue was not about renewal rights owners, It was about original ownership of songs obtained "without the author suspecting" or the ownership of the songs after Peer requested their assignment from plaintiffs in 1997 (a form of Peer recognizing thet the owners were plaintiffs).
"Timely registered" but never really registered... what the heck is that?
Fuste Opinion Page: 47-1
Fuste text: Defendant Peer, having exercised its rights by making a timely filing for renewal is, therefore, the present legal owner of the renewal copyrights in the aforementioned songs.
Error: But prior to saying this, Fuste says that the filings (for the aformentioned songs) were never made. See Fuste Opinion Page: 45-5. So to say that Peer is the current owner is misleding statement because the aformentioned songs include songs that were named never had timely filing for renewal. A clear contradition and error used to justify an alleged ownership decreed by the judge.
Actually these songs did not have any copyright registrations, renewal or otherwise, at all: AUSENCIA, CARIÑO, LLEGA LA NOCHE, NADA PUEDO HACER, NI A LA DISTANCIA. NO ACEPTO OLVIDO, NO, NO DIGAS NADA, NO VUELVAS MAS. NOCHE SI TI. RECORDACION, TU PARTIDA.
BTW: The lack of a Peer registration a song means that no one was put on “constructive notice” of Peers claims to ownership, including the GVL heirs. So when the GVL heirs registered the songs under their own name and assigned rights to GVL Inc. they did it legally, as Peer did not put anyone on constructive notice of their claims.
Gimenez at PEER INTERNATIONAL CORP. et al., v. LATIN
AMERICAN MUSIC CORP., et al.,
Error: But many of the songs were acquired without the author suspecting and Fuste ignores that.. Document 1387 (below) is never cited in the opinion. Incredible. And how about "timely filing for the original copyright period". As Fuste says (Fuste Opinion Page: 45-8), Peer did not publish or register these 10 songs: Ausencia * ; Cariño*; Llega la noche*; Nada puedo hacer*; Ni a la distancia*; Noche sin ti*; No acepto olvido*; No, no digas nada*; and No vuelvas más*. Now Fuste says they belong to Peer because of Peer's timely filing. BUT THE FILING NEVER OCURRED.
* These songs are in the "withot the author suspecting letter". In that letter these five other songs are also named and were copyright registered by Peer: Amor mi dilce amor, Borracho sentimental, Tu partida, Recordacion, Miedo. Theory: Peer found recordings from sources other than Guillermo Venegas for these five songs but not the others.
As a result of these no registration, if assignments were made in 1952 as claimed by Peermusic, Peermusic obtained the assignments for 111 years (1952 to 2063), something unheard of before, while the most allowed by law was 28 years on a first term assignment and 28 years if the second term (renewal) was also assigned when renewal period arrived. See the analysis for AUSENCIA here.
Note on the eternal copyright: Peermusic alleges that they retain world rights for songs that have returned to GVL heirs for the renewal period under the theory that renewal rights are valid in the United States only. Then since the United States specified copyright (renewal) duration period is also valid in the United States only, Peermusic thus claims to own songs for an eternal copyright period, a clealy illegal claim. An extension of this theory, that all copyright duration periods under United States laws only applies to the United States territory and not elsewhere. Thus Peermusic has eternal copyrights of american and puertorican (such a Genesis by GVL) songs outside of the United States but which can then be licensed back in the United States from a foreign country.
World rights: A note about renewal rights period "for the rest of the world only". The renewal copyright period exists because American law created it. The law attaches some condition to this period, one being that the song returns to the composer or the composer heirs. Peermusic, evidently, likes the part about the existence of the period but does not like the part that the rights revert to the original owner of the heirs for the period. Peer accepts that the period exists but does not accept that the period belongs to the author or the author heirs. Very foxy and deceitful. Like taking the part of a law you like and not discarding the part of the law that you dislike.
Mexico Hymn (Himno Nacional Mexicano) story and
The lyrics for Himno Nacional Mexicano was written by poet Francisco Gonzales Bocanegra (1824-1861) and the music byJaime Nuno Roca (1825-1908). The hymn was first performed in 1854. While the song is surely in the public domain, the song is registered in the BMI reprtoire (BMI work 5688 79) even though it is illegal to license and profit works that are in the public domain. But the problem is deeper. The BMI repertoire is licensed in Mexico by Sociedad De Autores Y Compositores De Música, who within their licenses issued in Mexico include the ASCAP repertoire which includes Himno Nacional Mexicano. Thus the Himno Nacional Mexicano is licensed (for payment) in Mexico by ASCAP through Mexico by Sociedad De Autores Y Compositores De Música. That is also ilegal, under Mexico law, as well as morally wrong.
Robbing the Mexicans Hymn to exploit it
commercially is wrong and is nothing more than
greed and stupidity.
Fuste Opinion Page 47-6
Fuste Text: The Copyright Act of 1976 grants the copyright owner the exclusive right to use and to authorize others to use the copyrighted material in one of five different ways.
Error: But then Fuste says that mere authorization is not infringement. Then what is it when others authorize the performance without being the owner. It is legal because it is not infringement? If it is illegal, what is the penalty?
Fuste Opinion Page 48-21
Fuste Text (a Plaintiff claim): Moreover, it is now clear that “an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner.” Sony Corp. of Am., 464 U.S. at 435 n.17. Such an act can result in on the part of the authorizing party.
Error: Fuste ignored his own text and the jurisprudence he cites and decided that mere authorization (the worst kind of infringement) is not infringement of the copyright ownre's distribution and ownership rights.
Note: If authorization were not infringement, then if Peermusic or ACEMLA authorized a foreign record producer the copying of a GVL song (owned by the children of GVL) then there would be no infringement by Peermusic or ACEMLA and since the actual copying was abroad, the GVL children would have no practical remedy for the obvious infringement caused by Peermusic or ACEMLA illegal authorization. Clearly illegal authorization is infringement.
The judge: Stealing a song for many years is not as bad as singing it once.
Judge Fuste did not read the lawsuit, which was
about the damange that the defendants may have
done to plaintiffs while falsely posing as owners
in the marketplace, thereby destroying the
marketability of the music of Guillermo Venegas. A
simple reading of the lawsuit will reveal this.
damages here. See
lawsuit here. Because Judge Fuste did not
read the lawsuit he ended awarding damanges for an
alleged copyright infringement by ACEMLA when in
fact ACEMLA never made any copyright infringement
(copy or perform without authorization).
Fuste Opinion Page: 47-21
Fuste text: Moreover, it is now clear that “an infringer is not merely one who uses a work without authorization by the copyright owner, but also one who authorizes the use of a copyrighted work without actual authority from the copyright owner.”
Error: But Fuste contradicts himself by saying later on that the mere authorization is not infringement and that means that the infringements by ACEMLA did not occur. See page
Fuste Opinion Page: 49-12
Fuste text: Pursuant to the license, Peer Defendants authorized the manufacture and distribution of phono records using certain Peer Defendants-owned copyrights solely as originally released on the Marvela, Guarani, Verne, and Tierrazo labels.
Error: Fuste fails to recognize that plaintiffs had tried to get information about this license from both Disco Hit and from Peer and both refused to show anything to plaintiffs, who as beneficial owners (if Peer was the "legal" owner the song) had a right to know. The refusal of Peer to give any information was the main reason for suing Peer, that being, apparently the only recourse left. Of course, Mr. Barry Slotnick explained it: GVL heirs had no right to any information. All was said at the trial.
Note on Beneficial Owner: During
the trial Rafael Venegas said that the children of
GVL were "beneficial owners" of the songs
under the assumption that Peermusic was the legal
owner of the songs. Peemusic's lawyer Barry
Slotnick commented that he had never hear of the
theory of "beneficial owner". Section 501 of the
Fuste Opinion Page: 51-11
Fuste text: As such, Disco Hit’s recordings of Alma triste, Génesis, Raza negra, Concierto para decirte adiós, Hasta que me oiga Dios, and Apocalipsis were not prepared pursuant to Peer Defendants’ license and Peer Defendants could not, therefore, be liable for their allegedly improper use.
Error: This is based strictly on Peer's employees or lawyers word (more or less of questionable character). But we know that Peer was illegally licencing the songs Génesis and Apocalipsis through ASCAP (and still doing it at end of 2006), Peer's representative (Mr. Hiram Negron) has a close personal relationship with Disco Hit and Peer and Mr. Negron tried to illegally license the song Génesis for a television commercial until stopped by the Venegas sibblings (plaintiffs) and Peer illegally licensed the song Génesis to Banco Popular in 1993.
Fuste Opinion Page: 53-13
Fuste text: preserve the right of the owner of a derivative work to exploit it, notwithstanding the reversion.”
Error: This suggests that Peer is the owner of the derivative works, the recordings, but that is not the case here. Presumably the owner of the derivative work (the recording) is Disco Hit.
Fuste Opinion Page: 54-14
Fuste text: In addition, Plaintiffs did not terminate their grant within the statutory period.
Error: This is an unreasonable proposition if the publisher was stonewalling and never gave any information as to when renewals accrued.
Fuste Opinion Page: 54-17
Fuste text: it is also lawful under the derivative works exception
Error: But fuste does not resolve the issue as to who has the rights to collect the royalties, the original licenser or the nw owner?
Fuste Opinion Page: 54-27
Fuste text: Peer Defendants had registered their claim to Génesis during the original term of copyright
Error: Not so. The registered owner was PHAM
Fuste Opinion Page: 55-17
Fuste text: Peer attempted to obtain the renewal rights to the song Génesis from Plaintiffs by offering them an administrative deal.
Error: Fuste fails to mention that this event ocurred in 1997 and that attempt was for all Songs now claimed by Peer, not just Génesis. This omission is the basis of ignoring the fundamental reason for the lawsuit: Peer told the plaintiffs that paintiffs owned the songs and then continued to license the songs. If Fuste did not understand this, then his mind was not in the case.
Fuste Opinion Page: 56-6
Fuste text: Peer Defendants aver that because Plaintiffs did not file a U.S. renewal registration in 1997
Error: Plaintiffs did not know that renewal was up and Peer never notified plaintiffs about it and when plaintiffs asked about renewal rights Peer stonewalled. So Peer argument is flawed and Fuste doe not say so.
Fuste Opinion Page: 56-17
Fuste text: It was clear, from the negotiations between Plaintiffs and Peer Defendants, that Peer Defendants knew they had no right to the song Génesis.
Error: The so called negotiation never ocurred. This is a fiction of the judge. The reason is simple: Plaintiffs thought that Peer was a deceitful publisher firm with which an assignment of rights could not be negotiated, as Peer would do absolutely nothing with the song for lack of any expertise in the promotion of music and their prejudice towards the music of GVL.
Fuste Opinion Page: 57-8
Fuste text: Finally, Peer Defendants suggest that the infringement was unintended.
Error: In fact, and more closely to the truth, Peer denied any infringement in their answer to the lawsuit, where it was requested by Peer that the lawsuit be dismissed summarily.
Fuste Opinion Page: 58-11
Fuste text: that permit such radio stations to broadcast songs included in ASCAP’s repertoire.
Error: The ASCAP repertoire is unknown to radio stations and other venues as a practical matter.
Fuste Opinion Page: 58-15
Fuste text: Peer 15
Defendants’ claims to Génesis and Apocalipsis in the United States ended with the original term of copyright for those songs on January 1, 1998, and January 1, 1999, respectively.
Error: But Peer claims it got a license from PHAM, a firm in a country with no renewal rights. Also it is possible that PHAM no longer claims or can no longer claims Genesis because the Mexico law limits assignment periods (to protect composers from abusive publisher practices, it seems). If PHAM no longer claims genesis, Peer claims could not survive when PHAM claims ended, if they ended before 1998 in the U.S. and the world.
Missing; and elsewhere. Fuste is
supporting, without saying so, the Peer position
that they own the world rights to Genesis and the
other PHAM songs.
Fuste Opinion Page: 59-7
Fuste text: Likewise, Peer Defendants do not know and do not attempt to determine whether BMI or ASCAP normally remove Peer Defendants’ registrations from the BMI or ASCAP repertoires when Peer Defendants’ ownership ends.
Error: How can an intelligent person swallow this? Of course Peer knows that songs are never removed from the ASCAP catalog... but that is to Peer's advantage. After all who is gong to sue Peer with judges like Fuste around.
Fuste Opinion Page: 59-14
Fuste text: However, a song will be listed only if ASCAP has surveyed or paid royalties for that song.
Error: So the the ASCAP web page is useless to determine which songs are covered by an ASCAP license. Why would ASCAP do a silly thing like this. This statement undermines a Peer argument... that to find out if the performance rights organizations had GVL songs (authorized to license) plaintiffs would find the songs in the ASCAP or BMI web pages. What Fuste is saying is that if Peer registered 21 songs with BMI, for example, plaintiffs would not find X number songs because they were never surveyed. Therefore Peer's argument was flawed.
Fuste Opinion Page: 59-17
Fuste text: Plaintiff Rafael Venegas testified that he visited ASCAP’s web page on or about June 30, 2000, performed a search of its on-line repertoire, and that both Apocalipsis and Génesis appeared in ASCAP’s on-line repertoire, with Peer/Southern Music listed as the publisher and administrator for those songs.
Error: Fuste did not find that these two songs, Apocalipsis and Génesis, were infringed by Peer (and ASCAP) through fact that ASCAP was licensing the songs on behalf of Peer who had no ownership rights while the songs belonged to plaintiffs. Note: To this date the songs are being licensed by ASCAP, on behalf of Peer. Since for a separate reason, Fuste found that Génesis was infringed by Peer, this omission means that Fuste did not find Peer infringed Apocalipsis even though it did by authorizing ASCAP to use the song and ASCAP infringed by authorizing their customers to use Apocalipsis. Let us say that Fuste ignored the song Apocalipsis and it's infringement both Peermusic and ASCAP altogether.
Fuste Opinion Page: 60-12
Fuste text: Peer Defendants possess an ancient card claiming to exclude the territory of Puerto Rico from the registration of Génesis with ASCAP,
Error: But ASCAP cannot have a mechanism to exclude PR from its licensing. Anyway is academic and silly to discuss this when there is really no ASCAP catalog published at all.
Fuste Opinion Page: 60-19
Fuste text: These courts have determined that the inclusion of the word “authorize” as one of the exclusive rights Civil Nos. 01-1215 & 01-2186 (JAF) -61- reserved for copyright owners in 17 U.S.C. § 106 was “intended to codify the antecedent jurisprudence of contributory infringement,” not to create independent enforcement grounds of enforcement. 3
Danjaq, S.A. v. MGM/UA Communications, Co., 773 F.Supp. 194, 201 (C.D.Cal. 1991); see also, 3 NIMMER ON COPYRIGHT § 12.04[A] (2003) (finding that “in all but exceptional circumstances, the act of authorization simpliciter is unlikely to damage the co-owner.”).
Error: But these are exceptional circumstances: Peer has been abusive by stonewalling and hiding information and ACEMLA has attempted to illegally get all of GVL songs (from the estate-executor) and have done great damage to the owners. If Fuste did not grasp the damage, he was not listening. Here Fuste cites his own previous and very confusing opinion: intended to codify the antecedent jurisprudence of contributory infringement. Actually one would think that the right to authorize is the most important of the exclusive rights under copyright law but Fuste thinks it is not a right at all but a intention to codify, whatever that means, something not in the laws.
A point here: if authorizing is not
infringement then when ACEMLA authorized Sonolux
for the manufacture of records, they were not
infringing yet our right to authorize such
recording to profit from it. But when ACEMLA
licensed Sonolux, Sonolux was not interested in
getting a license from plaintiffs and then paying
Fuste Opinion Page: 60-19
Fuste text: Courts have found that “the mere act of authorizing without proof that the party so authorized actually distributed copies of the copyrighted work, does not constitute copyright infringement under the Act.
Error: The logic is correct under some circumstances but not all. In many situations the evidence is circumstantial or prima facie and may be accepted as proof even though there is no direct proof. See: Proof PrimaFacie Evidence Circunstancial Evidence
Fuste Opinion Page: 61
Fuste text: in all but exceptional circumstances, the act of authorization simpliciter is unlikely to damage the co-owner.”).
Error: But that is precisely our circumstance... with Peer and ACEMLA claiming wrong ownership (bu including the song in ASCAP or BMI or ACEMLA's online or other catalog, plaintiffs are prevented from doing business..
Fuste Opinion Page: 61-7
Fuste text: We note that situations where there is no direct act of infringement will “in all likelihood [be] remediable under the applicable state law without having to invoke federal jurisdiction.
Error: But Plaintiffs went to PR courts and it said it was strictly federal, and that it had no jurisdiction.
Fuste Opinion Page: 61-11
Fuste text: Further, even though Plaintiffs claim that radio stations played GVL’s songs under Peer Defendants’ authorization, they have failed to connect most of their claimed performances to Peer Defendants.
Error: This is absurd. The connection was clearly made: Peer licensed or registered with ASCAP and BMI and these licensed radio stations and all sorts of venues. Fuste committed judicial perjury by changing the facts.
judge: Stealing a song for many years is not as
bad as singing it once.
Fuste Opinion Page: 61-16
Fuste text: because without the directly infringing conduct, the court would be unable to determine whether the acts complained of are actionable under the Copyright Act).
Error: This is then situation whereby the infringement must be caught in the act to see if it is an infringement. This is like saying a murder must be seen to know there was a murder act or that a robbery act must be seen to know there was a robbery.
Interesting: For the identical situation
with ACEMLA, Fuste says on page 75-7that there was
Fuste Opinion Page: 62-1
Fuste text: We found, above, that No vuelvas más and Ni a la distancia are owned by Peer Defendants.
Error: But they were acquired per #1387 and Fuste doesn't even mention it. Also No vuelvas mas is included in Peer document 0671 (translated) that says that GVL said he did not assign No vuelvas mas. There was never any evidence presented that Peer challenged that clim by GVL. Document 0671 (translated) was presented in trial.
Fuste Opinion Page: 62-4
Fuste text: Moreover, Peer Defendants have proffered evidence that they did not receive royalties on Génesis from ASCAP, suggesting that they had no constructive knowledge that ASCAP was licensing Génesis outside of its granted license. Consequently, we cannot find that Peer Defendants had the requisite knowledge of ASCAP’s act to constitute contributory infringement under current jurisprudence. Error: But the so called ASCAP sampling to determine which songs are played is worthless
Error:: Nonsense: Everyone knows that the ASCAP sampling scheme is totally bogus. Also Peer is an insider at ASCAP and Peer can say anything about ASCAP income it wishes. Fuste takes Peer pronouncements as if they came from a trustful source. He forgets about 1387 (below) and said that was said in court that made Peer look very badly.
Update: As of April 8, 2005 Peermusic is
still authorizing the use of Genesis in Puerto
Rico through ASCAP because the song is still
listed in the ASCAP repertoire and its Internet
database. It is alleged by ASCAP that the song is
there because Peermusic claims rights for foreign
countries, the problem being that the Internet
database has no flag to indicate that and the so
called foreign rights are a mere fabrication of
Peermusic and do not exist. See renewal "world rights"
for more information about these fabricated and
non existent rights.
Fuste Opinion Page: 62-5
Fuste text: Peer Defendants counter that they did not authorize any performance of Génesis in Puerto Rico through ASCAP since Peer Defendants instructed ASCAP not to issue licenses for the song's public performance in Puerto Rico when they registered it with ASCAP in 1969.
Error: This is perjury by Peer, because Peer must know how the system works: All radio stations are told is that they can play all the songs in the (really noexistent in practice) BMI of ASCAP catalog if they pay for the license. If Fuste wanted to be fair he would have commented on this or should have warned Peer that they were perjuring or coming close to perjury by saying things that were not true or were misleading.
Fuste Opinion Page: 62-13
Fuste text: did not receive any royalties or income from BMI or ASCAP since January 1, 1998,
Error: Misleading fact prdoced by Peermusic. So in ~6 years Genesis has not generated any income for Peer but it claims world rights. Now, if Genesis does not earn any income what has Peer being doing to exploit the song worldwide?
Fuste Opinion Page: 62-17
Fuste text: “failure to withdraw registrations” on which Plaintiffs base their infringement claims was, and is, in accordance with industry practice
Error: Nonsense and Fuste swallowed it.
Fuste Opinion Page: 63-2
Fuste text: Thusly, Peer Defendants have suggested that ASCAP, not Peer Defendants, violated Plaintiffs’ ownership interest in Génesis.
Error: Utter nonsense.
Fuste Opinion Page: 63-22
Fuste text: Plaintiffs aver that Peer Defendants received $3,209.40 for the licensing of the song Génesis to BPPR. Plaintiffs do not reveal how they arrived at that calculation. Peer Defendants counter that they received less than $2,000 in gross revenues from all uses of any of the allegedly infringed GVL songs during the three-year period prior
to this action’s commencement, Peer Defendants’ Exhs. 108, 111, 112, only $1,038.91 of which is attributable to the BMG-Génesis license. Peer Defendants’ Exh. 111.
Plaintiffs have failed to controvert
Peer Defendants’ evidence, or suggest how they
made their own calculation. We have reviewed
Peer Defendants’ exhibits, and find that their
calculation is substantially correct. We,
therefore, adopt Peer Defendants’ proffered
calculation of $1,038.91 as Plaintiffs’ actual
damages for the licensing of the BPPR license.
Fuste Opinion Page: 64-1
Fuste text: Peer Defendants counter that they received less than $2,000 in gross revenues from all uses of any of the allegedly infringed GVL songs during the three-year period prior to this action’s commencement
Error: Again, Peer's words is taken at face value. The word "counter" suggests there are no supportive documents. otherwise these would be somehow described.
Fuste Opinion Page: 64-18
Fuste text: in a sum of not less than $750 or more than $30,000
Error: This is wrong. Maximum statutory damage is $150,000.
Fuste Opinion Page: 64-5
Fuste text: only $1,038.91 of which is attributable to the BMG-Génesis license.
Error: BMG nor Peer has ever divulged to plaintiffs or to the judge how many infringing records have been manufactured by BMG and sold or where. Clearly an unsettled matter.
Fuste Opinion Page: 64-10
Error: This is what the law says about damages:
are the facts:
Clearly the so called "Peer Defendants’ proffered calculation of $1,038.91" did not include the damages suffered by plaintiffs as a result of it's inability to market the song Genesis because of the markeplace confusion when more than one party claim ownership of a song. Clearly Peer ilegally claimed ownership of the song Genesis for many years, causing incalculable damages which are very likely in the hundreds of thousands of dollars. Among the damages are that Banco Popular sued plaintiffs (on a separate case) as a result of an ilegal license issued by defendant Peer and plaintiffs have already spent more money on that case tnat the pitty $5,000 award in damages received from Judge Fuste.
Error: Clearly the judge did not read the opinion he signed, that says that the damages resulting from the Peermusic to Banco Popular illegal license ($1,038.91) are the results from the unrelated Peermusic to BMG illegal license infringement income of $1,038.91. That the two amounts of money earned by Peer for two separate infringements (BMG and Banco Popiular licenses) are identical is an incredible error (r is it?).
Interestingly BMG nor Peer has ever divulged to plaintiffs or to the judge how many infringing records have been manufactured by BMG and sold or where. Clearly an unsettled matter,
Clearly if fuste had really analyzed the actual costs in damages for Peemusics license to BPPR, he would have come up with a totally different amount, over $39,000 (See data here).
Additionally the indicated error, the decision that Peermusic infringed defendants rights when it licensed BMG is counter to the same judge's descion that ACEMLA parties are part owners of the infringed song after 1999. If ACEMLA parties were really owners of the song, the infringement could not be counted by the judge, since a cause of action in the BMG license infringement by Peermusic requred that ACEMLA be a party to the lawsuit against Peermusic and it wasn't. Strangely the judge did not see this and more strangely, neither Peermusic nor ACEMLA protested. Something that is so in plain sight!
Note: Additionally this decision, that Peermusic infringed defendants rights when it licensed BMG is counter to the same judge's descion that ACEMLA partiea are part owners of the infringed song after 1999. If ACEMLA parties were really owners of the song, the infringement could not be counted by the judge, since a cause of action in the BMG license infringement by Peermusic requred that ACEMLA be a party to the lawsuit against Peermusic and it wasn't.
Of course, Fuste could have very logically awarded the maximum of $150,000 statutory damage in favor of plaintiffs, simply because Peer made the worst type of infringement, acting as owner and telling both BPPR and plaintiffs it was the owner when in fact it was not and wahtever license was issued to BPPR was illegal. By deceitfully acting as owner illegally, Peer actually prevented plaintiffs from using their right of ownership. So Peer deceived and misled both BPPR and plaintiffs and it cost them nothing (per Fuste, Peer pays plaintiffs what Banco Popular paid Peer). Why, Fuste, why were you so in favor of Peer and biased against plaintiffs???
The amazing Fuste BPPR blunder and
A note: Banco Popular admitted in a separate lawsuit (01-cv-1142), filed in the same court, in January 2001, that they used the song Genesis in two television special programs twice, in 1993 and in 1999 and both programs resulted in the sale of phonorecords. For both uses of Genesis ACEMLA was paid and plaitiffs (the song owners) Venegas heirs were not paid at all.
The amazing Fuste Peermusic damages
3 years later (Nov, 2007): Theree years after Fuste's
order, Peer continues to infringe the song Genesis by
licensing the song through ASCAP and by not stopping the
production of infringing recordings, such as the BMG
(now Sony BMG) recordings of En vivo Desde Carniege
Hall, a record illegally licensed by Peer nd still
widely sold. The reason for this is, obviously Peer's
reckless disregard for the law and the extremely low
damage award of judge Fuste. The award had zero built in
deterrence. We suspect but only Fuste knows why he did
what he did for Peer and/or his now judicial coleague
Francisco Besosa (Peer's lawyer).
Fuste Opinion Page: 65-9
Fuste text: When determining the exact amount of statutory damages to award to a copyright plaintiff, the court has discretion to award an amount that “the court deems just;” however, statutory damages should be commensurate with the plaintiff’s actual damages. See, e.g., New Line Cinema Corp. v. Russ Berrie & Co., 161 F.Supp. 2d 293, 303 (S.D.N.Y. 2001); RSO Records, Inc. v. Peri, 596 F.Supp. 849, 862 (S.D.N.Y. 1984) (holding that “assessed statutory damages should bear some relation to actual damages suffered”); Warner Brothers, Inc. v. Dae Rim Trading, Inc., 677 F.Supp. 740, 769 (S.D.N.Y. 1988) (stating that “this option is not intended to provide the plaintiff with a windfall recovery”).
Error: The Fuste awards of damages bear no relation to the actual damages suffered. Fuste awarded a total of $21,000 in damages while plaintiffs have lost millions in income because of Peer and ACEMLA-LAMCO's infringement and fraud actions.
Fuste Opinion Page: 65-20
Fuste text: We must consider: (1) the expenses saved and profits reaped by the defendants in connection with the infringements; (2) the plaintiff's lost revenues as a result of the defendants’ conduct;
Error: The plaintiff's lost revenues was not considered at all or deemed to be insignificant by the judge. The actual cost to plaintiffs is actually incalculable because it is the potential of earnings of the various songs that Peer infringed. Perhaps with a good administration the so called PHAM songs could have earned over a million dollars in the period between GVL death and the trial. That in itself is a good reason for awarding the maximum statutory damages of $150,000 (not $30,000 as erroneously stated by judge Fuste in the opinion on page 64-19)
Fuste Opinion Page: 65-22
Fuste text: “Under this section, the total number of ‘awards’ of statutory damages that a plaintiff may recover in any given action depends on the number of works that are infringed regardless of the number of Civil Nos. 01-1215 & 01-2186 (JAF) -65- infringements of those works.” Mason v. Montgomery Data, Inc., 967 1
Error: Wrong. The judge may factor the number of infringements to determine that amount to be awarded. So that a work that is infringed many times should get a bigger award.
Fuste Opinion Page: 65-11
Fuste text: however, statutory damages should be commensurate with the plaintiffs actual damages.
Error: Per this theory actual damages will always need to be calculated - but only the affected party can do that, not the infringer. Fuste relies then on Peer numbers. Seems wrong to use Peer or ACEMLA numbers for this.
Fuste Opinion Page: 65-15
Fuste text: holding that “assessed statutory damages should bear some relation to actual damages suffered”
Error: Then why are judges allowed to use it for punitive damages when the infringement was intentional.
Fuste Opinion Page: 66-5
Fuste text: statutory damage award to a sum not more than $100,000.
Error: Wrong again. it is $150,000
Fusté knows of the 1997 assignment request from Peer
Fuste Opinion Page: 66-12
Fuste text: It is clear that Peer Defendants attempted to obtain an administrative deal from Plaintiffs regarding GVL’s songs as early as 1997, Plaintiffs’ Exhs. 110, 111, 118, 122, 127, which mentioned Peer Civil Nos. 01-1215 & 01-2186 (JAF) -67- Defendants’ ownership in Génesis, and which Plaintiffs rejected.
Error: So Fuste admits here that plaintiffs owned the songs in the so called administrative deal, which was also a request for assignment. So here Fuste must be saying that Peer in 1997 wanted the songs from plaintiffs. Thei if Peer wanted the songs from plaintiffs, who was the owner, Peer or plaintiffs? Fuste decided erroneously the the owners were Peer. A defiance of simple logic.
Error: Fuste at no time expresses as to the meaning of Plaintiffs refusal to assign song rights to Peermusic. Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.
Note: Per plaintiff Maria, a Peer employee and witness said at trial that plaintiffs failure to make the requested assignments meant that Peer could no longer do business with the songs.
THEORY AND ERRORS blow.
Fuste Opinion Page: 66-14
Fuste text: or if it recklessly disregards a copyright holders rights
Error: But Peer was very reckless and the judge awarded minimal damages.
Fuste Opinion Page: 66-22
Fuste text: It is clear that Peer Defendants attempted to obtain an administrative deal from Plaintiffs regarding GVL’s songs as early as 1997
Error: Nothing was clear at the time regarding the ownership because of the Peer refusal to supply documentary evidence (other than the 1952 blanket contract) other than Peer wanted assignments for all songs from all Venegas siblings and then tried to contact plaintiffs to talk about an administrative deal, presumably for all songs that Peer now claims to own.
Fuste Opinion Page: 67-8
In light of the statutory boundaries and relevant caselaw, we believe Plaintiffs should receive five thousand dollars in statutory damages. Because this amount is greater than actual damages, we grant Plaintiffs $5,000.00 as their damage award.
Error: By law, Judge Fuste had to award the actual damages or the statutory damages. The actual damages are an amount that is stated in a sealed envelope in possession of Fuste. While plaintiffs lawyer is privy to that information, the plaintiff themselves are not. Nevertheless that "sealed" amount should be vastly superior than $5,000 because it is an entire category of income of defendant, who did not provide an accounting of the their deductible expenses.
Also, Judge Fuste never presented the actual damages he cites. The amount of money received by Peer, with interests added is estimated to be far greater, greater than $39,000. A letter from Peer in 1997 says it had sent to Peermusic "affiliate" PHAM $3,209 for royalties collected for Genesis. On the other hand Peermusic case documents say that Peer was to retains from 75 to 87 percent of the royalties, so that if $3,209 was sent to PHAM, over $16,000 had been collected. If interests (10 %, compound) are added, the amount is in excess of $39,000. This $39,000 does not include additional money that Peer illegally received. Per Fuste, in lieu of $39,000 Peer received less than $2,000 (accepting information stated by Peermusic as good), a figure used to justify the ridiculous amount of $5,000 he awarded plaintiffs.
Note: Peer never gave plaintiff a copy of the license it issued to Banco Popular in 1993, so there is no knowledge of how much money Peer received initially from Banco Popular. Of course we know of Peer's pattern of hiding documents and Peer's theory that plaintiffs had no right to information. This license to Banco Popular is just another document hidden by Peer.
Additionally, the money received by the other defendant, ACEMLA-LAMCO ($60,000) for the use of the song Genesis constitutes a loss of income that is attributable to Peer, because of Peer's false claim of rights Banco Popular did not attempt to get a license from plaintiffs in the first instance, when the song was used and recorded (it got it from Peer) and then got a second license from ACEMLA-LAMCO, who also did not have the rights to the song. When these $60,000, plus interests are added to the previously mentioned $39,000 we have $99.000 in actual damages, an amount that is probable very short of the amount in the sealed envelope of probably millions of dollars.
Ignored by Judge Fuste:
A small comparison to show absurdity
of Fuste award
Now compare these answers to these
questiony would be for the actions of Peer in
licensing Genesis to Banco Popular for a
television "special" and to BMG for a recording:
* each time a license was issued that
included the song for broacasting (ASCAP).
Fuste Opinion Page: 68-1
Fuste text: LAMCO registered the following songs that are not in their renewal term:
Error: Fuste lists 9 songs. Actually LAMCO registered (illegally) over 70 songs not in their renewal term.
Fuste Opinion Page: 68-19
Fuste text: Defendant LAMCO’s claim of ownership depends upon a document signed by GVL during his lifetime,
Error: Referring to the 1964 agreement letter assignments, Fuste says that GVL did not make any claims and that therefore the statue of limitations was a valid defense by Peer. But here he takes another approach. He doesn't mention the statue of limitations at all - He could have argued that since plaintiff did nothing before this complaint the statute of limitations made the rescission of the assignment inappropriate. But that would have been inappropriate since we had no reason to challenge this document before it was used as an argument in court. Doesn't the same logic apply in Peer's case? Why is anyone, heirs in this case, to challenge an assignment of a song if the heirs did not know the assignment to Peermusic in 1964 existed, since the document (1964 agreement letter) was never shown to heirs?
Fuste Opinion Page 69-1
Fuste: A transfer document must be in writing and signed, and it must be clear.
Error: Consider these facts:
a. the 1952 contract was not clear on many issues: (1) songs covered (2) termination conditions if non performance occurred (3) Peer responsibilities/promises regarding performance. So if the statement is true, the contract is not valid.
b. The 1964 so called agreement contains the names of at least one song GVL did not compose. Therefore the agreement is not clear as to which songs were on page one, or what page 1 of the agreement said when GVL signed page 2.
Error: Fuste never considered what he said for determining in favor of rescinding assignments made through ambiguous contract signed by GVL.
Fuste Opinion Page: 69-21
Fuste text: Section 204(a) “ensures that the creator of a work will not give away his copyright inadvertently and
forces a party who wants to use the copyright work to negotiate with the creator to determine precisely what rights are being transferred and at what price.”
Error: Composers can never knew at what price they are assigning songs to Peer.
Fuste Opinion Page: 70-13
Fuste text: Without more, we cannot find that Defendant LAMCO owns the copyright in the aforementioned songs.
Error: But fuste does nothing abut the criminal infringement.
Fuste Opinion Page: 70-15
Fuste text: Plaintiffs have not proffered, however, any evidence of a direct act of copyright infringement. Without evidence of such an act, as discussed supra, we cannot award Plaintiffs damages for copyright infringement.
Error: But elsewhere (page 27-1) there is mention by Fuste that Sonolux paid a total of $67,912.92 to LAMCO, obviously for royalty payments for produced records (over one million records, as the royalty rate was about 7.5 cents per record) . Fuste forgot what he previously wrote on the opinion.
Error: The records (CD's) were made by Sonolux and ACEMLA was paid $67,912 (page 27-1) in royalties to ACEMLA, The amount paid to ACEMLA means that over 1,000,000 records were manufactured by an illegal authorization (as determined by Fuste himself) of ACEMLA and in the end Fuste did not find any infringement by ACEMLA.
Clealy Fuste lied so as not to find copyright infringement.
Note: Because of ACEMLA illegally claimed to own the songs recorded by Sonolux and Sony, and the subsequent collection of royalties from these recording companies by ACEMLA, the plaintiffs (heirs of GVL) estimate that they have not been able to collect royalties for over 5 million records and over 1 million dollars in royalties (plus interest). Strange: this one million dollar loss was turned into a zero dollars damage award by Judge Fuste.
judge: Stealing a song for many years is not as
bad as singing it once.
Fuste Opinion Page 71-18
Fuste: Plaintiff Venegas testified that he did not know the names of the songs played or the precise date of the show, admitting that it could have been broadcast as early as 1997, outside of the prescribed statute of limitations.
Error: ACEMLA parties said in their Pretrial Statement of Facts of 11-17-03, page 7 line 23: . "Of these works, only “Génesis” and “Desde Que Te Marchastes” had achieved some popularity in past years and could have been performed in radio stations.".
The fact is moot because ACEMLA did not present any evidence that the license to Radio Catolica ended before the statute of limitations.
Fusté knows that the Sonolux licenses resulted in $67,912 in royalties paid to ACEMLA. Ignores that having ACEMLA infringed by having GVL songs in their licensed catalog.
Fuste Opinion Page: 72-4
No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
This means that after the infringement has ended, assuming there is no tolling and the copyright holder knows of the infringement, the copyright holder has three years to file a claim. In the present case the infringement had not ended (Sony/Sonolux were producing records when the present lawsuit was filed) and there was tolling because plaintiffs were barred (and tolling kicks in) from suing LAMCO parties, as a member of the LAMCO parties has a lawsuit against plaintiffs (claiming song ownership) and that case ended in mid 2000, less than a year before this lawsuit was files.
Error: Judicial perjury by Fuste, because Fuste says on page 22-1 that ACEMLA returned a payment of $67,912) payment to Sonolux. Clearly the Sonolux payment was proof they manufactured infringing records and continued to do so for a long time after this sentence was issued by Fuste (as of 2007 the infringing records are still being sold in stores and the Internet by the Sony-Sonolux partnership).
Strange: In a sparate case Sony alleges that they made records under license from LAMCO, therefore they acted in good faith.
Error: The records (CD's) were made by both Sony and Sonolux and ACEMLA was paid $67,912 in royalties to ACEMLA (see page 27-1, The amount paid to ACEMLA means that about 1,000,000 records were manufactured by an illegal authorization (as determined by Fuste himself) of ACEMLA and in the end Fuste did not find any infringement by ACEMLA.
Error: Proof was presented that ACEMLA licensed radio stations during the period. It is also absurd to talk about the prescribed period in the case since there is no prescribed period because of tolling.
Error: ACEMLA never produced any documents during discovery or at trial that would prove that ACEMLA returned the $67,912 to Sonolux or Sony. So there is only an Bernard (ACEMLA) statement at trial to the effect that the money was returned.... but Bernard is a chronic liar and Fuste should have realized that.... it is so obvious.
Perhaps we should object on appeal the information of Fuste that the money was returned.
Note: Because of ACEMLA illegally claimed to own the songs recorded by Sonolux and Sony, and the subsequent collection of royalties from these recording companies by ACEMLA, the plaintiffs (heirs of GVL) estimate that they have not been able to collect royalties for about 10 million records and over 1 million dollars in royalties (plus interest). Strange: this one million dollar loss was turned into a zero dollars damage award by Judge Fuste..
Also ignored by Judge Fuste:
Ignored by Judge Fuste:
Fuste Opinion Page: 72-5
Fuste text: Defendant LAMCO’s license resulted in the copyrighted works’ use during the prescribed limitations period. Without precise information, these acts of authorization do not constitute a direct act on which contributory copyright infringement can be based.
This statement is contrary to the law. See here.
judge: Stealing a song for many years is not as
bad as singing it once.
Fuste Opinion Page: 72-14
Fuste text: The total performance royalties paid to ACEMLA were $260,432.10. These licenses, however, included Génesis and the entire ACEMLA catalog from the period of 1993-1998.
Error: Fuste missed the point or believed a lie. Retroactive licenses cannot be for the entire catalog, but for the actual six songs performed. So songs from the catalog that were not actually performed by Banco Popular could not share the money paid for the so called retroactive license since only six songs (one was the Venegas song, Génesis) were used. Fusté fell for an accounting gimmick by ACEMLA.
Error: Had the LAMCO license been for the entire catalog, and the catalog included many songs by GVL then all the songs in the catalog were infringed. This was then ignored by Fuste.
Error: For lack of evidence it must be
stated that there is no such thing as a ACEMLA
catalog nor is there a catalog for a 1993 to 1998
Fuste Opinion Page: 72-21
Fuste text: In addition, Puerto Rico courts decided that any rights in GVL’s musical work which belonged to him at the time of his death were transferred to Plaintiffs.
Error: No such expression was made by the Puerto Rico courts. Agian Fuste distorts the facts to help defendants. What the Puerto Rico courts decided (on January 20, 20-00) was that all rights to the music of GVL belonged to plaintiffs and that if the widow had any rights she ceded them to plaintiffs. What t Fuste said does not even square with defendants claim (another lie) that the Puerto Rico courts decide not to enter the issue of the music's ownership because that was a federal court only issue.
Note: On May 21, 2009 the widow said in
a deposition that the Puerto Rico courts did not
decide about the ownership of the music because it
had no jurisdiction because that was a federal
issue. Clearly the big lie of defendants LAMCO
ACEMLA parties and Fuste continues.
Fuste Opinion Page: 73-3
Fuste text: Defendant LAMCO argues that the songs were outside the three- year copyright infringement prescriptive period when they granted the retroactive license in 1998, since many songs were part of a 1993 BPPR Christmas special.
Error: But the performance infringement act for Genesis occurred when the last radio license was issued and that occurred within the prescription period.
Error: Fuste says the song Genesis, per LAMCO's argument, was "part of a 1993 BPPR Christmas special" but elsewhere, so as not to award damages of $43,000 for LAMCO's infringement, Fuste states that the performance was not proven. A clear contradiction of Fuste.
Fuste Opinion Page: 74-4
Fuste text: As such, any profits from the BPPR license premised on acts prior to the date that Génesis
entered its renewal term properly belong to Plaintiffs.
Error: But Fuste says that ACEMLA received 260,000 for a six songs ($43,00 per song) retroactive license for prior to the date that Génesis entered its renewal term, one of the songs being Génesis and Fuste forgot to order the money paid to plaintiffs. Fuste decided to say an untrue statement, that plaintiffs did not convince him the song was really performed. Fuste's error was not attacked by Heath.
Fuste Opinion Page: 74-17
Fuste text: "Defendant LAMCO admits having received $260,432.10 in performance royalties for Defendant LAMCO’s catalog spanning the 18 period of 1993 through 1998."
Error: That the ACEMLA license retroactively included all the songs in the ACEMLA catalog. It is senseless that Banco Popular would pay $260,000 for the entire catalog when it had only used a few songs in the licensed period. This defies simple logic. This allows an accounting gimmick so that only $17 were for the use of the song Genesis in a television special and the performance in the taped program for several years.
With this statement and the Fuste "probable" (page 75-5) statement (that because Genesis was licensed to Banco Popular, if it was licensed it was probable performed) then plaintiffs can say that all many thousands of songs were probably performed by Banco Popular. Absurd.
Proof Genesis was performed per Peer
ACEMLA parties sentence
Fuste Opinion Page: 74-11
Fuste text: Although we recognize our ability to grant statutory damages exceeding the actual damages here, we will not grant statutory damages in excess of this amount. Therefore, $16,363.47 will constitute Plaintiffs’ damages for the licensing in question here.
Error: This is not a damages sentence but a mere restitution. Fuste fails to mention why he will not give higher statutory damages. Fuste is unjustifiably sympathetic to ACEMLA or biased against plaintiffs. The sentence is only what ACEMLA was paid by Banco Popular... and not even interest were added for the several years that ACEMLA held the money. Fuste did not even consider statutory damages (to determine which was higher, actual or statutory) as he had to do since the request of plaintiffs was whichever was higher. Also Fuste did not consider as a factor defendants ACEMLA-LAMCO's parties behaviour:
- Steling stealing all of GVL's music and fraudulentlu claiming the ownership the music.
- Ilegal licensing.
- Interference to prevent the collection of hundreds of thousands in royalties from Sonolux Records
- Suing plaintiffs claiming music rights after stealing the music.
- etc. etc.
For fuste none of tis merited any consideration at time of determining what he calls statutory damages" for a so called copyright infringement.
Error: The judge did not award any damages for the records produced by Sony and Sonolx under authority of ACEMLA parties, who were paid for the records. Had the obvious infringement been seen by the judge an award of $300,000 ($150,000 x 2 songs) should have been made to plaintiffs. The maximum stipulated in the law ($150,000) per infringed song should have been awarded because along with the infringement there was theft of ownership of the rights (the stoten songs were copyright registered by LAMCO as their own) and it was not mere usage. Details here.
Note: Because of ACEMLA parties (this inclides the GVL estate executor Chavez-Butler) illegally claimed to own the songs recorded by Sonolux and Sony, and the subsequent collection of royalties from these recording companies by ACEMLA, the plaintiffs (heirs of GVL) estimate that they have not been able to collect royalties for about 10 million records and over 1 million dollars in royalties (plus interest). Strange: this one million dollar loss was turned into a zero dollars damage award by Judge Fuste..
infringements: Giving rights to ACEMLA and to
LAMCO to 206 copyrighted songs.
Total infringements: 495
Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.
Additionally here was the Vicarious Liability of those that induced the executrix Chavez Butler to make te illegal transaction of passing the rights to the songs to LAMCO and ACEMLA: Jose Lacomba, Luis Raul Bernard. No damages were set for these (Chavez, Brnard, Lacomba) by the judge. Note: The actual number of songs infringed is not really 206, but over 600 songs, most of which are not copyright registered yet, and registration is required to prove infringement.
We repeat, no infringement (direct, vicarious or contributory) was found for defendants Chavez, Bernard, ACEMLA (separate corpotation from LAMCO or Lacomba. The Judge does not explain why he decided not to find these persons as infringers. Jurisprudence has it that on cases where may arties are found to have infringed, all parties are made to pay for their infringement, wether direct, vicarious or contributory,
These are the (statutory damages)
options the judge had assuming there were 701
infringements and the statutory damages limits are
$700 to $1,400 when the infringement is
From another case, Venegas vs. Sonolux, United States Court of Appeals For the First Circuit, Case June 7, 2004: "...if a plaintiff proves that two different defendants each committed five separate infringements of five different works, the plaintiff is entitled to ten awards....".
Note: Note: Because of ACEMLA parties (this inclides the GVL estate executor Chavez-Butler) illegally claimed own (a nice wording for stealing) all the songs composed by GVL and pre-emptively sued the GVL heirs in local courts, in 1997, to claim the ownership there, the heirs had to defend their rights to the songs in that lawsuit, so additional damages were made by ACEMLA parties. These damages (actual legal costs) are an aditional, estimated $40,000. This was not considered at all by Judge Fuste ay all. It never hapenned.
Ignored by Judge Fuste:
Ignored by Judge Fuste:
Fuste Opinion Page: 74-17
Fuste text: Defendant LAMCO admits having received $260,432.10 in performance royalties for Defendant LAMCO’s catalog spanning the period of 1993 through 1998.
Error: What LAMCO "admitted", was not an admission at all. That the license covered LAMCO’scatalog is an exclusive LAMCO partie claim and that claim is a sham that is not consistent with the reality. What really happened was that LAMCO billed Banco Popular for some six songs that Banco Popular had used (thus performed) in their television musical "special" programs. Among these six songs was the song Genesis. LAMCO had no right to collect any payment at all. Of course all of this is academic since Fuste decided that the performance was unproved, even though it was a trial admitted and evidenced (through document) fact and all of Puerto Rico knew it, since at the time the television special was shown it was one of the most viewed television programs in history and the song Genesis was the highlight song.
Note: If LAMCO's claim that the license was for an entire catalog of 15,000 songs had any validity, then the payment per song would be a $17.36, a ridiculous figure for the use of a major song in a Banco Popular program.
Note: $260,432.10 with 10 percent compound interest has a present value of $461,371.35 ($76,895.23. per song).
Fuste Opinion Page: 75-4
Fuste text: Plaintiffs have not persuasively shown that BPPR actually performed Génesis or any of GVL’s songs during the time period.
Error: It doesn't matter. BPPR paid to ACEMLA for playing Genesis and the payment did not stipulate for how many performances. But Fuste said elsewhere that Lucecita sang the song in the 1993 special.
But there is more: A tape recording of the event was presented as evidence. The tape recording of the event is a tape being sold by Banco Popular and for which $18,000 in royalties were paid to ACEMLA and was the basis for the $16,000 in damages awarded to plaintiffs. So a tape of the performance by Lucecita was made, the tape was evidence in the trial, the tape's royalties were paid and the judge says that "Plaintiffs have not persuasively shown that BPPR actually performed Génesis". Total judicial recklessness by judge Fuste, so as not to award additional damages to plaintiffs from ACEMLA. Strange, for the same performace illegally licensed by Peermusic, Fuste takes another and contradictory apprach. For Peermusi Fuste says accepts that Banco Popular used the song. See here, and here.
Worse yet: Evidence was presented that Banco Popular paid $260,000 to ACEMLA for the infringing performance of six songs, including plaintiff's song (Genesis) on television which Fuste said was not persuasively shown that it took place. So $43,000 was paid for the performance of a song and Fuste was not persuade it ever took place or that the $43,000 actually paid should have belonged to plaintiffs as damage. An incredible Fuste decision. BTW, most puertorricans saw the Banco Popular television program in question and heard Lucecita sing Genesis, as it was reported to be the most watched program ever up to that time and the Lucecita performance of Genesis was the highlight of the program according to many. We repeat. elsewhere Fuste said that the performance did take place.
But here is the more incredible part: Jose A. Fuste awarded $16,000 in damages to plaintiffs because ACEMLA parties received that same amount from Banco Popular as royalty payment for the store sale of a video of theBanco Popular 1993 television special. One would think that Fuste was smart enough to realize that if the video of a television program included the performance of Genesis by Lucecita for which Banco Popular paid $16,000 in royalties for the song Genesis, paid to ACEMLA, then then absolutely surely Lucecita did sing the song Genesis in the 1993 television program. Believe it or not Fuste stated in his opinion "Plaintiffs have not persuasively shown that BPPR actually performed Génesis" so as to make sure that plaintiffs were not awarded at least the $43,000 which Banco Popular paid ACEMLA for the performance. Certainly Jose A. Fuste had his mind set againt plaintiffs.
Of course, Fuste could have very logically awarded the maximum of $150,000 statutory damage in favor of plaintiffs, simply because ACEMLA made the worst type of infringement, acting as owner and telling BPPR and the entire music industry it was the owner when in fact it was not. By deceitfully acting as owner illegally, ACEMLA actually prevented plaintiffs from using their right of ownership. So ACEMLA deceived and misled both BPPR and the music industry and destroyed plaintiff possibility of expliting their property for many years and it actually profited from the transaction (received $60,000 in 1999 and had to pay plaintiffs $16,000 in 2004). Why, Fuste, why were you so in favor of ACEMLA and so biased against plaintiffs???
But there is more: On January 31, 2001
BANCO POPULAR sued Peer, ACEMLA (case 01cv1142,
JudgesJuan Perez Gimenez, in the same court,
presided by Judge Fuste himself) because both of
these so called music publishers (illegally)
licensed and were paid for the use of the song
Genesis for the 1993 television program and again
for the 1999 television program. This lawsuit, as
of December 2007 (after almost 7 years) is
unresolved. In that lawsuit no one has claimed
that the song was not performed. Incredible,
the question being, what does it take to
persuade Judge Fuste that the song was
performed? Why did Fuste not read and discuss
the very relevant 01cv1142 lawsuit before saying
he was not persuaded the song was used?
Fuste Opinion Page: 75-5
Fuste text: Génesis or any of GVL’s songs during the time period. Without BPPR’s direct use of the song, the license here is evidence of only probable, not actual, infringement, of GVL’s songs. Without more, we cannot grant Plaintiffs a portion of the above mentioned profits.
Error: Per Fuste's own word the song was performed in the 1993 television special. 2. "Probable" is proof. 3. Why would Banco Popular pay $43.000 as stated by Fuste in page 28 line 15 for performances for 6 songs if one of those songs was never performed?
Note: "the license here is evidence of
only probable" if applied to the BMI licensed song
that belonged to plaintiffs would mean also that
he songs licensed by BMI and ASACAP were also
infringements by Pee.
Fuste Opinion Page: 75-5
Fuste text: Without BPPR’s direct use of the song, the license here is evidence of only probable, not actual, infringement, of GVL’s songs. Without more, we cannot grant Plaintiffs a portion of the above mentioned profits.
Error: Now, why didn't Banco Popular tell ACEMLA this before paying, that they never used the song in the 1993 television special everyone (almost) in Puerto Rico saw,. They would have saved many thousands of dollars. Fuste's argument is pathetic.
On page 73 line 3 the christmas special is mentioned. And now Fuste denies the existence of a performance.
Important: This perversion of the truth
is made by Fuste, out of own volition. If anyone
said that Genesis was not performed by Banco
Popular at trial it would have been perjury, So
Fuste committed perjury?
Note: But when it came to the smaller amount mechanical license Fuste did NOT say that the license is "evidence of only probable, not actual, infringement, of GVL’s songs.". If Fuste had said that then ACEMLA, by Fuste's theory ddid not infringe and would not have had to pay any damages and plaintiffs would have come out empty handed. Actually plaintiffs offered better or equal proof that Banco Popular performed Genesis than it sold recordings.
The correct principle may be this: A license is not proof of infringement but payment is proof. The logic is simple: No one pays royalties for the license itself, but the production done as authorized by the license.
Ignored by Judge Fuste:
Fuste Opinion Page: 75-17
Fuste text: The exclusive rights enumerated in 17 U.S.C. § 106 are held jointly by co-owners, who each have “‘an independent right to use or license the use of the copyright.’”
Error 1: While technically correct because of what the law says, it is wrong in practice for the simple reason that in most countries licenses for using a work must come from all owners. In todays shrunken world and where music can be distributed to the entire world from a computer, partial rights, are in effect, useless. For example, if one of the GVL heirs lisensed a song to a record company that record may not be sold anywhere outside the U.S.A. Copyright Laws jurisdiction. This fact makes co-owners licenses useless, a well known fact in the music industry.
Fuste Opinion Page: 76-17
Fuste text: A co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright.
Error: This is wrong. The word "profit" should read "royalties received". For example, if a co-owner runs is a money loosing business and makes no profits, then there is no money to be paid. So, this concept that what is paid are profits is nothing more than an invitation to get money under the table so as not make no profit so as not to share the profits. Typically songwriter-publisher agreements state that the songwriter gets a percent of the royalties and not a percent of the profits. On the other hand, performers typically sign contracts whereby the performer is paid from the profits. When this is the case, many times the performer gets nothing because the record was not profitable, a common complaint of performers.
Infringement by the estate-executor, but no damages
Fuste Opinion Page: 77-11
Fuste text: While we do not have the requisite evidence before us, we do find that Defendant Chávez-Butler must account for any profits out of the non-exclusive rights that she granted Defendant LAMCO.
Error: This is a manifest error for several reasons: 1. Infringement must be the only reason for ordering Chávez-Butler, the estate-executor, to return any money. On the other hand, Chávez-Butler was not declared an infringer. 2) Ambiguous and no amount is set. In ther wrds, the damages are unspecified. 3) The estate-executor has already been ordered, on 6-2-03. to do the same in Puerto Rico courts and has not complied there yet (as of 2-25-08). 4) The estate-executor and ACEMLA have a history of not respecting and deceiving the courts and people to whom she has a fiduciary obligation, such as plaintiffs. 5)The words "account for any profits" is ambiguous. "Account and pay any money received"" would have been clear. 6. A damage award wa mandatiry since Chávez-Butler clearly did infringe copyrights by authorizing ACEMLA to unlawfully licence songs and that resulted in actual performances and the production of videos and phonorecords.
Interesting: Order is disobeyed. Six months after the judgement was made Defendant Chávez-Butler has neither appealed the judges opinion nor has she accounted for anything nor has she paid any money to Plaintiffs. Clearly the judge has been disobeyed but there has been no consequence of that action of disobeying and the judge has taken no action.
Note: Because of ACEMLA parties (this inclides Chavez-Butler) illegally claimed to own the songs recorded by Sonolux and Sony, and the subsequent collection of royalties from these recording companies by ACEMLA, the plaintiffs (heirs of GVL) estimate that they have not been able to collect royalties for about 10 million records and over 1 million dollars in royalties (plus interest). Strange: this one million dollar loss was turned into a zero dollars damage award by Judge Fuste..
Ignored by Judge Fuste:
Fuste absurd sentence against Peemusic
Fuste Opinion Page: 77-15
Fuste text: In accordance with the foregoing, we order Peer Defendants to pay Plaintiffs $5,000.00 in damages, and we order Defendant LAMCO to pay Plaintiffs $16,363.47 in damages.
1. Per Copyright Act, to determine actual damages/profits plaintiffs had to give the court Peer earnings for the years they received royalties and Peer had to indicate the deductibles. Since Peer did not give the deductions data, plaintiffs were entitled only to the Peer income. But Fuste bundled the Banco Popular income with the BMG income (about an
Regarding the $5,000 against Peer Fuste decided to ignore Peer history of not giving information to heirs, not paying royalties, illegally getting the songs from the estate-executor, not returning Banco Popular royalties, double dipping/splitting of royalties, retaining 87.5 percent of royalties, method of operation (never have they returned a song. which means their contracts are mercifully enforced - nice partners to have), etc..
2. In the last X number of years, Peer had been licensing the song Genesis through ASCAP and Harry Fox. Plaintiffs gave the court the information as to how much money Peer received from ASCAP and Peer did not provide the deductibles. Therefor by law plaintiffs plaintiffs were entitled to all ASCAP income. Plaintiffs did not give the court information as to how much was received from Harry Fox..... Plaintiffs can do that in the still pending Banco Popular lawsuit against Peer and ACEMLA.
not read the lawsuit
4. Error: Fuste omits sentences or injunctive relief's that oblige
a. ACEMLA to unregister songs.Said Judge Fuste in another case: “a plaintiff seeking injunctive relief based on an alleged past wrong must show that there is a real or immediate threat that he will be wronged again,”. Surely composers and composer heirs will be wronged again as they have been continually wroged in the past. Just remember Peer lawyer remark that paintiffs had no right to information.
5. Fuste sets the damages based on what Peer says they got from that license, ~ $1,200 for including the song in a medley (the song was not sung in a medley, but was actually a full and highlight song (a matter of opinion). But plaintiffs can counter that by saying plaintiffs would have requested a payment of a different amount, say $10,000 and it is the owner who sets the price. So Fuste's logic is flawed.
6. Fuste used the wrong dollar (less than $2,000) amount to determine Peermusic income from the song Genesis, The correct amount is over $39,000. See here for details.
Note: The Peermusic employee that gave the court the amount of money that Peer received from Banco Popular for one infringement comitted perjury, assuming, as logic tell us, that the amount the court was given by Peermusic was less than the $5,000 awarded as damages by Fuste for two infringements. This is because Peermusic must have received well over $5,000 from Banco Popular. See here for details
7. Fuste, in an obvious error, did not even declare that ACEMLA-LAMCO was an infringer, let alone an intentional infringer (intentional infringement forces the court to double the damages or award all infringer income because of the infringer's failure to produce deductible expenses).
8. Ignored by Judge Fuste:
Ignored by Judge Fuste:
A small comparison to show absurdity of Fuste award
A few days before the trial, Fuste
awarded a $15,000 damage award against El Vocero
newspaper, for using a surfing photograph
without an amateur photographer's
Now compare these answers to these
questiony would be for the actions of
* On 2002 a Puerto Rico court had resolved that the music of GVL belonged to the heir children. ACEMLA-LAMCO continued their infringement action of defiance of the court. Judge Fuste was fully aware of this decision. The indringement continues to this day, october 2004.
Error: Fuste makes no mention of the Peer license issued to Banco Popular in 1993 nor the collected royalties thereof and the Peer refusal to return said royalties to Banco Popular or GVL heirs or Peer retention of up to 87.5 % of royalties paid by Banco Popular before sending to PHAM who eventually did not pay anything.
Theory: Omission made because it did not
fit the story line that Defendant was not guilty
Error: Title 18 U.S.C. 2314 provides criminal penalties for any person who "transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud. Fuste did not concern himself with this statute even though it is clear that both ACEMLA and Peer "obtained" songs through fraud.
Ignored by Judge Fuste:
Error: Fuste makes no mention that when Peer tried to get assignment for all songs which Peer later claimed anyway, Peer tied the assignment to the payment of royalties as if trying to hold the royalties as ransom to get the assignments. As it turned out plaintiffs refused to give Peer the assignments and Peer id not pay plaintiffs any royalties.
Peer never notified plaintiffs that they
had "automatic" renewal rights in these songs. It
is discovered during this case, when Peermusic
admits that these songs are not claimed by them
within only the US.
Error: The lawsuit against ACEMLA parties contained a claim for illegal appropriation (criminal infringement?). Judge Fuste never decided on this claim.
Error: Fuste says that Peer claims of ownership cannot be challenged because the 6 year statute if limitations has expired. But then it says that the songs therefore belong to Peer. But the ACEMLA parties copyrighted and claimed (letter 3-7-97 ) ownership to Peer more than 6 years before and and copyrighted many Peer claimed songs over copyrighted also more than 6 years ago (registration PA-835-281 of 1-8-97). The question is then, if no one, including Peer, challenged ACEMLA parties regarding their claims to ownership and copyrights, then ACEMLA is the owner of the very songs that Fuste's alleges belong to Peer.
The Fuste decision is at odds with a Perez Gimenez decision of 4-8-03 (LAMCO v. CARDENAS FERNANDEZ & ASSOCIATES. page 9) where Perez Gimenez states:
Even if they had, the district court further ruled, relying on Colon Gutierrez v. Registrador de Propiedad, 114 D.P.R. 850 (1983), that Lavoe's son, acting alone, did not have the right to convey copyrights to LAMCO.If the estate-executor had no right to convey copyrights to LAMCO, LAMCO had no right to issue licenses and Fuste makes no mention of this, an odd behavior, since the Perez Gimenez determination would make ACEMLA and Caro's behavior look really bad (because the know of the Perez Gimenez decision) and that may increase statutory damages.
General: The Fuste decision sends a massage: The courts are not a deterrent for copyright infringement. You will spend a great amount of money to get a much smaller amount.
General: Monrig comparison:
This court has no respect for equity or consistency in judgments. A songwriter, Monroig, may get an award of 8 million dollars for the use of a song without a license. Here the judge awards $21,000 (21,000/8,000,000 = 0.3%. Monroig got 333 time more and only one song was infringed. In this case over 100 registered songs were infringed by ACEMLA.
Per Fuste, Monroig would have been simply given the royalties of about 75,000 records, or about (75,000 x .08) $6,000, and he would have instructed the jury about it. But Monroig got over 1,000 times that amount.
Questions: Is it not the purpose of
jurisprudence to insure uniformity and equity in
case treatment? Is there a constitutional issue
when clearly there is no uniform treatment and
General: Fuste does not think that the the estate-executor transfer of non renewal songs to ACEMLA (still in effect) and renewal songs before the renewal accrued does not constitute copyright (criminal) infringement. At Arecibo they said it was a federal matter (copyright infringement) and Fuste thinks otherwise. Absurd.
General: Fuste omits to comment the fact that Peer claimed that the mere authorization was infringement in their case against ACEMLA. Fuste did not sanction Peer for alleging opposite arguments on 2 cases.
But Fuste said that .... "the license here is evidence of only probable, not actual, infringement, of GVL’s songs. Without more, we cannot grant Plaintiffs a portion of the above mentioned profits." But "probable" is proof.
judge: Stealing a song for many years is not as
bad as singing it once.
General: Fuste goes to great length to justify that Peer is still the owner of many songs but omits totally to mention the things that work against Peer such as the 1997 assignment request by Peer, document 1387 and the lack of communication with heirs (the other part of the contract) to answer questions and doubts about the ownership. Therefore Fuste is biased. Fuste could have told Peer: Because when plaintiffs asked for information as to how you acquired the songs you did not reply and instead tried to get new assignments you relinquished whatever right you may have had on any songs. To decide otherwise is to create chaos in the publisher-songwriter community due to bad publisher behavior. When you said to plaintiffs that you wanted an assignment from them you said to them that they had the right to make assignments and to license the songs, which is to act as owners. By telling plaintiffs they owned the songs when in fact they didn't, you could have caused them great damage if the had made transactions thereafter, like assigning the rights to another publisher.
Error: Fuste did not mention a Peer argument expressed by Barry I Slotnick in his closing arguments: That plaintiffs (GVL heirs) had no right to information from Peer and if they got any it was as a favor, not a right. Clearly this
alone is a reason for rescission since there is no reason why a composer or successor who assigned songs to a publisher should be subjugated to the tyranny of the publisher.
Plaintiffs had no right to
information / Hidden discovery documents
It should be noted that Peer's argument that Plaintiffs had no right to information was extended to the lawsuit itself. When Peer was requested as part of the discovery process, it sent 100 documents. Later on it turned out they had many more documents, and 1700 additional documents were produced. Clearly Peermusic, by not producing documents it had, was in violation of court procedures and was in fact hiding evidence. In addition there must be, this writer thinks, many more documents (evidence) that Peermusic did not produce, such as GVL related correspondence between Peer and GVL, Peer and ASCAP, Peer and PHAM, internal memos about the problems with the heirs, internal action requests, etc.
Why Judge Fuste did not issue a summary judgement against Peer when it became evident that Peer was hiding documents to intentionally suppress evidence is a very strange thing indeed.
The following is a case in point:
The refusal tpproduce discovery documents, wrote the Judge, harmed Perelman's case in a way "that cannot be cured. The judicial system cannot function this way."
Peer nor its lawyers were sanctioned or amonested by Judge Fuste for their subversion of the discovery process...hiding 95% of the documents they eventually produced (and surely hiding many more we can readily identify). Fuste was not angered.
Note: It was because of the tyranny of
Peer that plaintiffs wee refused answers,
royalties and even replies to many letters and the
letter from their
Benicio Sanchez Rivera that provoked the
filing of this lawsuit.
Error: General: Fuste omits to say anywhere how Plaintiffs have been financially hurt by the fact that the business has been completely stalled because the market confusion about the ownership of GVL works, created by the fact that Peer and ACEMLA have acted as owners. At trial the facts were presented to show how w have been hurt by Peer and ACEMLA illegal actions.
Error: Fuste Omits comments about ownership of PHAM songs in the rest of the world (for eternity).
Error: Fuste omits mention the theft or possible theft of the songs by both Peermusic and ACEMLA.
Error: Fuste Omits mentioning the copyright law requirement that renewal assignments require the actual signature of the composer.
Error: Omits mentioning the fact that a consular office signature was required for assignments made in Mexico to PHAM, as was mentioned in court.
Error: Omits issue of whether Peermusic "acquisitions" "without the author suspecting" were valid.
Error: Fuste did not order any investigation of the songs to certify that they were composed by GVL before pronouncing that they belonged to Peer because GVL assigned the song to Peer. The logical position of Fuste should have been the he would not pronounce anything about the ownership until proof was provided that GVL wrote the song. Clearly a publisher can prove this because it must get a score or a recording from the composer and a certification that he wrote the song. In the present case the certification that he wrote the songs is missing.
Perjury: At trial Jaeggerman said Peer had a PR office. Edmundo Disdier was notified by letter that the PR office was closed or would close. Is the perjury material? Could be because this makes it may remove a reason for rescission: Peer no longer has a direct marketing capability in PR, a place where record companies and performers could talk about getting new songs. Disdier offered a copy of the letter.
Fuste makes no mention of the testimony of Bernard and the estate-executor: Bernard and the estate-executor simply thought widows had the rights. The self serving comments made by Bernard, a veteran in the music publishing business is really perjury (overlooked by Fuste) that had no effect in the sentence. Fuste should have used these perjurious statements by Bernard to award the maximum damages. What Fuste did is the opposite - he awarded damages well below the actual damages (awarding nothing more than restitution of minor amounts, while ignring larger ones) and did not even consider statutory damages, to determine which was higher, actual or statutory, as was required by law.
Fuste makes no mention of a Peer contradiction:
Peer claimed in the Peer vs. ACEMLA lawsuit that authorization (mere licensing) was copyright infringement. In the present case Peer and the same lawyers said the opposite, that mere authorization was not infringement, since it an actual performance had to be proved. Fuste is nonchalant about how lawyers play with the courts.
Note: In the Peer vs. ACEMLA lawsuit it was decided by Judge Perez Gomenez that merely having songs in a catalog was infringement.
judge: Stealing a song for many years is not as
bad as singing it once.
The lost songs
During discovery Peer could not present a music score for many songs. For 14 of 24 claimed songs, Peermusic has no score. This by itself means that Peermusic cannot comply with their contractual obligation to exploit the songs. But for 4 of these songs (Cariño, Llega la noche, Mas alla, Nada puedo hacer) there are no known recordings and plaintiffs have never heard the songs. This all means that Peer threw away (or misplaced?) the material that GVL must have given Peermusic. Therefor these four songs are in all likelihood lost forever as a result of Peermusic's irresponsibility.
Sure, GVL should have made two scores and should have kept one of them. But that is not how the system worked then. At the time, in all likelihood GVL did not know how to write scores and Peermusic had a staff musician whose job was to listen to the songwriters to write a score for Peermusic. Then that was the only score, and Peermusic became its custodian and was supposed to publish the scores - this is what songwriters were promised.
Pending is compensation by Peermusic for the loss of the songs.
Fusté ignores the taking of songs "without the author suspecting"
Incredible: The Peermusic plan to steal Venegas songs is in writing!
Peer document 1387: "without the author suspecting"
This is as low as a music publisher can get with a composer it is supposed to represent in good faith. It involves getting songs from a composer that a composer did not voluntarily gave the publisher. Clearly any composer could have many reasons to not give additional songs to a publisher, such differences in the interpretation of a contract, the moral right to withhold or withdraw publishing, that the song was not of the composer, that the composer wants to rewrite the song before publishing it, that the publisher is not performing or paying as agreed (contract breached), and many others.
This Peer letter raises some questions:
Did Ralph Peer, the founder of Peermusic, Peer International and Southern Music, promote the theft of songs? Did he know how his employees operated? Was he a crook?
Why would Peer want to obtain and register songs in the Copyright Office without Guillermo Venegas suspecting they were doing so, when in fact Peer had the obligation to exploit and protect all songs given them by the songwriter registering them in the Copyright Office and in the performance collectives throughout the world?
Judge Fusté, very strangely (to protect Peer, we believe), does not mention this all important document in his 74 page opinion, which was read in the court, in his decision that the songs listedin this document, even the ones that GVL did not compose, now belong to Peermusic, allegedly because GVL gave them to Peermusic.
See this analysis that proves that GVL did not give Peermusic any of the songs listed.
Note: If the composer was not to know that Peermusic was to have the songs, then Peermusic could not pay royalties to GVL for those songs without exposing themselves to the scheme of "without the author suspecting" to the composer, GVL. This may explain why Peermusic never did anything with the songs. There is no proof that Peermusic ever had any of these songs recorded or that it paid any royalties to GVL or the GVL heirs.
Note: Peer did not present any document of a any date that suggested that GVL gave Peer ANY of these songs other than the so called letter dated April 29 and made at the same time this letter was made. This means that the statement "and I find that we have not received various manuscripts" really means, our construction, "we have liked these songs by GVL that we like and would like to have them even if the author doesn't know about it".
letter, in Spanish)
PEER-SOUTHERN ORGANIZATION NEW YORK
Angel I. Fonfrias April 24,
Opportunely I received your letter of March 17 where you inform me that the referenced author is willing to pay us what he owes in exchange for us giving him his “release”, as well as your letter of April 15 asking me to prepare and send you the necessary documents.
With this letter I send you a quadripartite letter in directed to Peer International Corporation that should be signed by Guillermo Venegas with all the copies. You will notice it is dated April 29 to allow time for you to contact the author, so try to get this letter signed on that date. You return to me all the copies to have them signed by one of our executives and at the right moment I will send you two copies, one for the author and one for your files.
Do not forget that he should give you the amount of $412.65, which I will appreciate you send me.
I have made a study of the works of this author and I find that we have not received various manuscripts, reason for their not being registered in Washington. Is there a way to get said manuscripts without the author suspecting that we need them to register in Washington. The titles are:
MI DULCE AMOR” (AMOR DULCE) “MIEDO”
If you think that it is too big of a risk to talk to the composer over this matter, then try to see if you can find recordings, etc. etc.
further ado, for the present, best regards from
Miss F. Garcia
This is the original letter:
A note about the 14 songs listed here:
- 10 were never copright registered by Peermusic and thus cannot belong to Peermusic even though judge Fuste declared that the songs belong to Peer because they were timely for renewal copyright. Actually no such thing ocurred. See here.
- 1 song was not composed by Guillermo Venegas. Borracho sentimental.
- 2 songs may not have been composed by Guillermo Venegas (Cariño / Tu partida). Peer has no score and the songs were never copyrighted.
- Peer never presented a prior to April 24,1964 document that would show where Peer obtained the song names.
Peer 1997 Peer
to plaintiffs for assignment of all songs.
Why would Peer request to get assignments if Peer owned the songs as Fuste has declared ?
What did did request to paintiffs in 1997 mean?
1. If plaintiffs returned the documents SIGNED, Peermusic would continue to license (note 1) GVL songs that Peer had been claiming to own before 1997. Otherwise Peermusic could not continue to license the songs (as they did), as admitted by Peermusic at the trial.
2) Since Peermusic, during the trial argued that the songs they requested from the heirs belonged to them, the the this offer of 1997 was fraudulent.
3. That any possible ownership of the songs requested by Peermusic was interrupted, as explained elsewhere (ownership interruption under Puerto Rico law).
1. The word "publish" is used erroneously in the letter, probably to mislead. Peermusic has published only 2 songs by GVL, probably in the 1959's for a very short time. Additionally, Peer cannot publish most of the songs since it does not have the scores - See appendix G: Songs that Peermusic cannot license, publish or do anything with because they have no score (or were nor composed by GVL) but own by Fuste decree.
2. Among the songs for which Peer requested an assignment was Borracho Sentimental. Had Plaintiffs signed this document, plaintiffs were legally liable for damages to the real owner. If such owner were to be as successful as Glenn Monroig (Who got $7.5 million for mere use of a song) in a lawsuit..... Also Peermusic itself could sue us for assigning a song we had no right to.
1515: A Stolen song: Borracho Sentimental
Borracho Sentimental: GVL says writes, over the
score of the song that he did not compose the song.
of Peer document # 1515
I never supposed that I was such a bad composer. I beg that you remove my name from this ridiculous thing. If by chance it belongs to my cousin William Venegas Cortez say so and eliminate the Guillermo. Thank you.
See Peermusic vs. ACEMLA case. The second fight over the ownership of Borracho Sentimetal.
1389: LLEGA LA NOCHE - A song that may not exists
As late as 1969 Peer says it has no
material for the song. Then, without any material, how was it
that Peer could exploit the song in the future. Judge Fuste
decreed that this songs now belongs to Peer, who will no be able
to license it and will thereby breach the contract again, an
unavoidable event and plaintiffs will not be able to claim
breach of contract because of Fuste's stupid theory about
statute of limitations.
|Document Peer 1389
SOUTHERN MUSIC PUBLISHING CORPORATION
To: Angel I. Fonfrias From Alberto Salinas June 19, 1969
Iam looking at a letter I sent Mr. Manuel G. Salinger on December 20 of last year, which Iam copying you.
In the letter he request a score of a work by Guillermo Venegas titled “LLEGA LA NOCHE”, since we do not have any material for the work.
Anyway to date I have no knowledge of the forwarding of such music to Mr. Salinger, will appreciate greatly you send him and us the score of said work, for the corresponding registration at Washington.
Without further matters for the present, I salute your sincerely,
Benicio Sanchez letter to Peer - was never answered.
Peer did not
answer this letter (admitted by Peer at trial) and that
provoked the lawsuit against Peer.
Peer also did not answer many inquiries made before the Sanchez Rivera letter, by Rafael Venegas:
a. How did Peer obtain songs other than a contract withous any song name ?
b. What was the meaning of the word "renweal" ?
c. Did Peer give licenses to Disco Hit as alleged by Disco Hit ?
d. Could Peer restitute plaintiffs for money collected illegally from Banco Popular use of Genesis ?
e. Did Peer give Reja Disco a license for Mi Cabaña as alleged by Rafael Escudero ?
RESCISSION THEORY AND ERRORS
ANALYSIS MADE IN REGARDS TO JUDGE FUSTE'S OPINION OF 5-19-04
Page 33 line 5
Judge Fuste text: Peer Defendants claim that Plaintiffs’ contract claims are barred under New York’s applicable six-year statute of limitations. Judge Fuste made many material and "due process" errors on the subject:
Rescission Error 1 by Fuste: 1997 assignment request
In 1997 Peermusic made plaintiffs an offer so they would assign Peer rights to all the song they now claim and did not claim to own then 1997. If the rights to the music belonged to plaintiffs in 1997, why did plaintiffs need need to file a lawsuit against Peer to rescind any assignments at that time? The only possible reason to request rescission then in 1997 would have been that plaintiffs had to think that Peer was trying to trick them some unimaginable way or was giving plaintiffs wrong information about the ownership and suspected Peer would change its mind about the ownership. But then plaintiffs had no reason to suspect any of those possibilities - that Peer would backtrack and reclaim ownership. If plaintiffs sued Peer for rescission in 1997 Peer would have said that they had recently proved that they considered plaintiffs owner, when they requested assignments and that the lawsuit was frivolous. Plaintiffs only concern then was to recoup unpaid royalties (illegally obtained from Banco Popular), not worry about any ownership issue since there were none. It is during the lawsuit phase that Peermusic backtrack and reclaims the songs. It would have been senseless for plaintiffs to ask for rescission under the comfortable belief that plaintiffs were owners of all the songs, as confirmed by Peer itself when it requested that plaintiffs assign the song rights to them in 1997.
The basic facts around this request for assignments by Peer in 1997 was presented at trial, therefore Fuste knew or should have known. A hypothesis as to why Peer backtracked is easy to develop. Once they were sued, Peer had a significant legal problem because they did not own the songs. The 1997 assignment request by Peer was a very serious proposition because it made plaintiffs believe they could license the song to others. If plaintiffs did license the songs it was because ACEMLA's claim of ownership had destroyed the market for GVL songs. Worse yet, If plaintiffs had licensed a record with singer Luis Miguel (and at the time we had the contacts to get that - the contact is dead now) with Peer claimed songs it would have been a huge success and would have certainly generated great sales and royalties. If the Peer backtracking were an acceptable action then they could sue singer Luis Miguel, his record company and plaintiffs simply because Peer backtracked on the ownership issue.
following questions arises:
- Should plaintiffs have decided in 1997 not to license any of the Peer claimed songs for fear that Peer would backtrack and sue them and our licensee (who could in turn sue plaintiffs if they were sued by Peer ?
- Should plaintiffs have decided in 1997 not to license any song because a judge had not made any ownership decision and we had to wait for Peer lawsuit ?
- If in 1997 plaintiffs assigned the songs to another publisher other than Peer, who would pay for plaintiffs defense when that publisher was sued by Peer and the publisher sued plaintiffs?
- Should plaintiffs have beleived that when they said no to Peer (to assigning songs rights to Peer) meant that the songs belonged to Peer?
Clearly the above questions point to the fact that when Peer led plaintiffs to believe it did not claim ownership in 1997 Peer made a life or death decision and (from Peer's point of view) - they lost. It cannot be that plaintiffs lost as a result of a Peer decision, supported by Judge Fuste. A grave "due process" failure of Fuste. Without "due process" Fuste took away the property from the real owners, the plaintiffs, without even deciding, one way or another, if the 1967 Peer request to plaintiffs for assignment of the songs meant that the songs did belonge to plaintiffs.
When plaintiffs filed the lawsuit in 2001 plaintiffs claimed that they were owners of the songs. Plaintiffs had good reason to believe their ownership claim was true since between 1997 and 2001 (lawsuit time) Peer did not say anything to us about ownership and they had ample time to dos so. Peer did not answer a letterfrom plaintiffs attorney, Benicio Sanchez Rivera. Plaintiffs also had good reason to believe that Peer never had rights to songs assigned directly to Peer, as stated in our lawsuit, because Peer only showed plaintiffs a 1952 blanket and useless (by itself) contract which named no songs. Peer had the opportunity to show proof and chose not to or could not. After 1997 that proof lost importance because of the assignment request from Peer that only made sense if plaintiffs were the owners, particularly in view if the fact that plaintiffs did not know about the 1964 letter. The reason Peer wanted assignments in 1997 was clear: They could not present proof of ownership and because of that Peer was exposed to a lawsuit from plaintiffs. During discovery, Peer presented about 100 documents. Case closed.
Rescission Error 2 by Fuste: Statute of limitation period
There is a basic flaw in the Peer and Fuste logic. The correct interpretation is is that the songwriter contracts assign the songs to publishers for the length of time they perform as publishers by successfully promoting and exploiting the assigned songs. Also that composers are beneficial owners. Fuste goes to great length in discussing the issue of ownership, but misses the basic points. Clearly to rescind a contract on the basis of non performance during an old period of time only may be a problem if that time period of non performance is before the statute of limitations period. But if the non performance is within the statute of limitations period then it follows that the statute of limitation argument as a defense is ineffective. For example, Peer has not issued a license for a new recording for any of the non-PHAM songs within the last 6 years (to use NY statute of limitations - the number is about 50 years). Therefore the contract may be rescinded for non performance. Same goes for non payment of royalties, is the right logic.
Fuste's erroneous decision means that contracts cannot be rescinded if they are older than the statute of limitations. It sets the ambient for a contractor that has no intention of fulfilling contract obligations permanently to decide to fulfill the obligations only during an initial (statue of limitations length period). Then afterwards there is no way for the contract to be rescinded because the contract is older than the statute of limitations and the allegation will be that the rescission had to be requested during the statute of limitations period.
See chart below. If we do the same analysis for any Peer claimed song we get the same results: No royalties and no recordings in SOL period.
Taxes: According to the Fuste theory of statute of limitations if a person did not pay taxes for the last 20 years and the statute of limitations for that laws violation is 5 years, then the tax evader cannot be charged with anything because the evader commenced the violation over five years before. Additionally the evader does not have to pay any future taxes because the evader can never be charged with tax evasion. Peermusic's action of not paying royalties is an evasion of a fiduciary duty, just like not paying taxes.
Rescission Error 3 by Fuste: Global rescission and not one a song basis
The rescission justification analysis should be on a song by song basis, not a contract basis. If Peer were performing great on one of the songs within the SOL period, plaintiffs may not be interested in rescinding the assignment of that particular song and Peer may fight the rescission on that song with the same argument - of course their reasoning would be that they are profiting from the successful song, whereas they may not object rescinding the assignments of songs that were not profitable for them - the bad songs - any income. This is a common business situation and surety that the courts have resolved if each item in a multi property contract (stores, land, apartments...) requires an individual analysis or if it is an all or nothing proposition. In music assignment contracts the all or nothing proposition seems a bad proposition for all parties involved in a rescission controversy. Perhaps for another type of business (e.g.: restaurant franchising) the story may be different.
Rescission Error 4 by Fuste: Original assignment
During the trial on proof plaintiffs presented proof that GVL, when alive, knew that Peer was claiming the songs that were also found in the 1387document, for acquisition "without the author suspecting". On the other a Peer originated document was presented that said that GVL said that certain Peer (now) claimed belonged to him. This is document 1389, written about 5 months after the so called 1964 agreement. This being the last information regarding the ownership of a number of songs and Peer not doing anything about is and being that it is too late, per Peer's own and Fuste's theory of SOL, then Peer has no rights to the named songs on document 1389.
that arises here is why there are tow contradicting pieces of
a. The so called agreement of 4-29-64 which says GVL gave Peer certain songs.
b. Document 1389 which says GVL said h did not assign the same songs.
The explanation: Page 1 if the 4-29-64 was switched after GVL signed page 2. After all, what is the integrity of those that were involved in writing and receiving document 1387?
a. Evidence was presented to show that Peer is an irresponsible and deceiving party.
b. The reason that Peer wanted the assignments in 1997 was that they felt they did not won the songs or could not prove it to GVL heirs, who had asked for the proof, got a blanket assignment and told Peer that the blanket license did not prove ownership of any song.
Fuste did not
give the above issue any consideration, to favor Peer.
Clearly un case of doubt the ownership issue should be resolved in favor of the author or successors.
Rescission Error 5 by Fuste: ACEMLA claims and registrations
By Fuste's logic the assignment that a descendant, X years ago, of puertorican composer Juan Morel Campos, who died in 1896 made to LAMCO and the copyrights resulting of that transaction are valid because no one has challenged that assignment in the last X number of years if X number of years are greater than the statute of limitations. This case shows that lack of a challenge to ownership is not a valid argument for ownership.
Also - under the Fuste logic, the setting is made to have companies claim right in a clandestine way (only selected potential witnesses are made aware of the claim) for a period greater than the statute of limitations and thereafter make the claim of ownership and the original owner has then lost the rights because he did not challenge the ownership on time.
The proper logic is: to make a valid claim ownership the transaction that gives the ownership was a legal transaction, no matter how many years ago the transaction was made.
Rescission Error 6 by Fuste: Ignored Peer argument
But the Peer argument above is a very good argument for rescinding the assignment of whatever song GVL may have assigned Peer. Peer clearly has not performed at all and has thoroughly breached the contracts:
a. There is no evidence thatPeer has ever licensed any songs for new recording.
Also plaintiffs do not know of any recordings neing made as a result of a Peer license.
b. Plaintiffs have not been paid royalties in the 10 years since GVL death.
b. Fraud was clearly established. See 1387.
c. Fraud ocurred in the inducement of the contract.
Rescission Error 7 by Fuste: Ignored Peer argument
The single most important act of deceit (after the 1964 get the songs "without the author suspecting" act) occurred on 9-22-97 Peer requested for assignments of the songs, without the intention of honoring our decision to not assign rights and during trial when Peer backtracked on the owneship issue (a second deceit action) . This went to the extreme that additional efforts was made by Peermusic to get the rights on about 2001, we heirs sad no to Peer and Peer continued to act as owners by licensing the songs and claiming to be owners of the songs in Peermusic lawsuit against ACEMLA-LAMCO.
Deceit and Game Playing
With an increible judicial blessing
This game paying (deceit) by Peermusic needs
a. In 1997 Peer asked the GVL heirs for the rights to exploit the songs. The heirs/plaintiffs rejected the proposal.
b. During trial in 2003, Peermusic claimed they owned the songs and needed no permission from plaintiffs to exploit the very same songs. Therefore, Peermusic claimed and the judge affirmed, their continued exploitation did not constitute infringement of heir/plaintiff rights.
c. Conclusion: In 1997 Peermusic was just playing games (deceit) with the heirs/plaintiffs as it played games with GVL back in 1964 (see the get the songs "without the author suspecting" letter).
d. The judge thinks nothing of this game playing and makes no mention of it in his opinion, another type of game playing (deceit). The judge must think that the heir/plaintiff rejection was a meaningless part of the game playing deceit by Peermusic.
e. The deceit is so great that now Peer owns (with an increible judicial blessing) a song it probably stole from another, (unknown to this writer) composer. The song is Borracho Sentimental.
Note: After 1997 GVL heirs/plaintiffs, threatened to sue several recording companies for their use of songs that are now owned by Peer (per the judge). Also some of the Peer songs are included in infringement lawsuit of the heirs against ACEMLA. We can only imagine that these record produces and ACEMLA can now sue the GVL heirs fom making fraudulent claims of ownership of the songs. Of course, even Peermusic can sue the heirs for criminal copyright infringement, since the heirs copyrighted some of the songs.
Of course and interpretation that a music publisher can deceive a composer after 4 years have passed from the signing of a contract is flawed if logic is applied. Songwriter contracts are lifetime propositions and a wrong interpretation of the statute of limitations could lead anyone to believe that all a publisher has to do is to plan to deceive and carryout the deceit after the statute of limitations has elapsed. For example, pay royalties only during the first four years. Since Peermusic promised GVL that it would exploit his music for the time the lifetime of the song copyrights, if Peer never intended to do that, then the deceitful action is an ongoing proposition. Of course Peermusic did not only deceit GVL, but deceived the GVL heirs.
Error 8 by Fuste: Ignored Peer argument
Interesting: Per Peer, rescission cannot occur because New York law has legal remedies for Peer's action, if the actions occurred. Fuste never said that "adequate" remedies are available under New York law. Certanly Peer did not mention them during trial and before trial. One would think that a remedy to resolve a dispute with a publisher is to talk about the dispute. But Peer did not even answer the Bemicio Sanchez Rivera letter.
This argument is wrong because we used our remedy (request information from Peer) and that did not work. Then there is the 1997 assignment request by Peer. That was a remedy that was used, the problem being that Peer backtracked.
Rescission Error 9 by Fuste: Ignored himself
Fuste states on Page: 66-12: "It is clear that Peer Defendants attempted to obtain an administrative deal from Plaintiffs regarding GVL’s songs as early as 1997....." So Fuste admits here that plaintiffs owned the songs in the so called administrative deal, which was also a request for assignment. So here Fuste must be saying that Peer in 1997 wanted the songs from plaintiffs.
Note: Per Maria, a Peer employee and witness said at trial that plaintiffs failure to make the requested assignments meant that Peer could no longer do business with the songs.
himself and the facts.
Rescission Error 10 by Fuste: Ignored Peer alleged facts
Peer did say the made offers. The following statement says they made at least 3 efforts: 1999, 2001 and another one that is unidentified... that is the 1997 offer for assignments. The offer is to administer the catalog of GVL songs. Why would Peer need this if they owned the songs?
Note: The word "continued" is used because the major Peermusic proposal was made, in 1997.
So here in the Peer facts presented after the trial ended, Peer admits that they asked for the assignment of songs or to permit Peer to adminster the GVL catalog. Then who was the owner? Clearly plaintiffs and not Peer, since if Peer was the owner it made no sense to ask plaintiffs for assignments or permission to administer the songs.
Plaintiffs exhibit #72 (Documents GVL 024-030) was the 1997 Peer offer to obtain assignments.
Rescission Error 11 by Fuste: Ignored himself
on Page: 38-19 "Rescission is appropriate when “the
complaining party has suffered breaches of so
material and substantial a nature that they affect the very
essence of the contract and serve to defeat the object of the
parties.” Nolan v. Williams Music Co., 300 F. Supp. 1311,
1317 (S.D.N.Y. 1969). In Nolan v. Sam Fox Publishing Co., 499
F.2d 1394 (2d Cir. 1974), where a composer sought rescission of
a Civil Nos. 01-1215 & 01-2186 (JAF) -39-copyright
assignment because of the defendant’s failure to pay 74% of
royalties owed, the Second Circuit explained that, “rescission
has been allowed . . . in cases in which a publisher has
made none of the royalty payments.” Id. at 1399. The court
found rescission inappropriate because the defendant paid “26%
of the royalties due, distinguish[ing] this case from cases
where there was total failure to pay the required royalties.”
Id. Similarly, in Cafferty v. Scotti Brothers Records, Inc., 969
F.Supp. 193 (S.D.N.Y. 1997), where the defendant had failed to
pay royalties to plaintiff for an entire three-year period, the
court denied plaintiff’s request for rescission because there
had been partial payment, explaining, “[t]he 11
law is clear . . . that rescission is not an appropriate remedy in this case.” Id. at 205; see also Affiliated Hosp. Products, Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183 (C.A.N.Y. 1975). The relevant case law reveals that the pertinent question is whether the contract has been complied with at all, as opposed to intermittently or 16
Clearly Peer has breached the
contracts (if they were legal) severly:
- by not licensing for a recording any song it now claims.
- By not paying royalties in the over 10 years elapsed since GVL death and has refused to return illegal royalties from Banco Popular. The non payment is non performance.
Rescission Error 12 by Fuste: Ignored Plaintiff argument and position
testified that in 1997 Peer asked for assignments to now
claimed by Peer GVL songs and that this meant the songs
belonged to plaintiff because Peer was no longer claiming them
after failing to present proof of ownership after it was told
by Rafael Venegas that a songless blanket license was not
proof and that plaintiffs needed to see a document with the
song name and the GVL signature. About this:
- Peer did not ask Rafael Venegas any questions about the 1997 assignment proposal. Good legal reasoning for Peer: Lets forget the subject.
- No Peer argument to ownership claim based on the RV statements was never presented.
- Plaintiff never withdrew claim or argument that the 1997 assignment request from Peer meant ownership by plaintiffs.
Error 13 by Fuste: The 111 year assignment to Peermusic?
In effect Judge Fuste gives songs to Peermusic for a period never allowed in the law, up to 111 years. See here for details about one song: Ausencia.
Rescission Error 14 by Fuste: Rescission is justified by many issue
Opinion: It was plainly foolish of Fuste to disallow the rescision on one issue, statute of limitation (which was wrongly applied anyway). No one thinks like that in making this type of decision (cancelling a contract)....it is all factors added up. It is a rule of daily life. An explanation is merited:
If one wants
to rescind or get out of a contract one does it because:
a. One issue is so grave that that is enough reason, or
b. Several lesser grave issue are, or
c. Many small issues
This is the way everyone thinks. Clearly courts have to have human thoughts. Anything else will result in a failure to be just and makes the court look like brainless fools (and in our case biased towards one side).
of whatever assignments of songs to Peer was justified by
-Plaintiff's rejection of Peer offer to get songs assigned (see 1997 Peer letter).
-Crass failure to exploit songs. (see song earrnings chart) *
Note: Peer did not even have scores for many songs, so explotation is not even possible.
-Crass failure to pay royalties (to hide their insignificance). *
-Admitted theft of songs Borre tu amor and Mi Cabaña.*
See CD purchased 3-20-06 at Walgreens.
-Additional theft of the songs Llega la noche buena and Como es la vida.
-Theft of all PHAM songs in their renewal terms (never actually turned over to plaintiffs, who were not even notified of their renewal registration). *
-Peer policy that beneficial owners have no right to information.*
-Peer document 1387: "without the author suspecting" letter. Made simultaneously with the so called GVL assignment agreement letter in April of 1964 .
-Theft of Borracho Sentimental and use of GVL name on the song.
-Peer illegal signing as "Guillermo Venegas" on eight renewal assignments, whereas the copyright law specifically requires the actual signature of the composer.
-Making copyrights renewal registration oh "behalf" of plaintiffs without informing plaintiffs they were the new owners, a deceitful act.
-Not retracting illegal licenses issued to BMG.
-Not returning illegally collected money received from Banco Popular and BMG (worth over $40,000 in current money, not the absurd Peer and Fuste figure of $2,000 for the Banco Popular and BMG infringements moneys).
-Peer failure to get songwriter actual signatures as required by law voids a reneal right claim by Peer.
-Peer theft of songs from other composers attached to the name of GVL (Borracho Sentimental and other songs not proven by Peer in the trial, to have been composed by GVL.
-Defendant Peer failure to respond to plaintiff attorney prior to the lawsuit.
-Defendant Peer did not provide a copy of assignmenet agreement (1964 letter) to plaintiffs when plaintiffs requested proof that GVL had indeed assigned the songs to Peer, prior to the lawsuit,
-Defendant Peer did not prove it ever gave a copy of assignmenet agreement (1964 letter) to the composer (there is no letter or transaction docment to show this).
-Defendant Peer did not prove that the composer ever saw the first page of the 1964 assignment agreement.
-GVL did not undestand english when he may have signed the 1964 assignment agreement letter.
-Peer has never been authorized to do business in Puerto, so all the assignments they obtained at their Puerto Rico office is illegal.
- Peer, clearly cannot be trusted to represent the interest of beneficial owners (composers and composer heirs) becase their only interest ifs to own large lists of songs, forever, so as to get the most money from performance rights organizations, money that is not distributed fairly or at all to beneficial owners.
* All these Peer acts and failures acurred within the aplicable 15 year statute of limitation period of Puerto Rico.
letter of deceit from Peer executive Angel I. Fonfrias
|Document Peer 0671
To. Mr. A. Salinas From: Angel I. Fonfrias October 15, 1964
Ref: Guillermo Venegas
Enclosed find check no. 1 of October 9 in favor of PEER INTERNATIONAL CORPORATION for the amount of $400.00 paid to us by referenced composer. Enclosed you will also find the “release” signed by Venegas.
Regarding the processing of this matter, let me clarify a number of details, since I believe that external forces operate against my wishes and I cannot follow your instructions about the signing of these papers per your (communication) of April 24.
To begin with Venegas only signed the document he sent you because, he said, he lost the rest of the copies, excepting for one I signed for him. I understand I should not have signed for PIC, but believe me, in the afternoon I was discussing this matter with Venegas there were so many people in the office (that you know has no privacy at all) and the reference composer was making a series of unwelcome comments that, frankly, I signed the document where his “release” is given, realizing later that it was you who had to sign because it was a PIC document and not PIC of Puerto Rico.
To remedy the situation, if the transaction cannot be left as is, I suggest that you prepare the documentation again to proceed to get the Venegas signature. Nevertheless if we can consider the matter as ended, it would be much better, because, frankly, talking to this gentleman drives anyone crazy.
As you may know Venegas was insisting that the works: POR EL CAMINO, NO TE VAYAS ASI, NO VUELVAS MAS, and RECORDACION do not belong to us because these works were recorded before his contract with us. Although after talking to you he was no longer insisting on his version, I understand that his signing the document is a implication that he accepts our point of view. Says Venegas, additionally, that the works in the documents: BORRACHO SENTIMENTAL, NO ACEPTO OLVIDO, and MAS ALLA are not his as neither is CARIÑO.
Let me know your point of view and believe me that Iam sorry this matter was not handled in the correct manner that could have been resolved.
Angel I. Fonfrias
cc: Miss P. Garcia
Analysis of the letter, which was supplied by Peer:
This letter discusses the so called
1964 agreement letter that GVL signed on page 2.
From the text of this letter we can conclude:
1. Per letter above, GVL did not have a copy of page 1 of the so called agreement. See here: Page 1--Page 2. So, it is possible that he never saw page 1, which could explain how it was that he "assigned" one or more songs that he did not compose and had no rights over to Peer. This also explains why GVL allegedly certified on page 1 that he composed a song he did not compose. It also explains why Peermusic was obtaining songs "without the author suspecting" at the same time the author allegedly gave Peermusic the very same songs.
The question is why would Peermusic
not want GVL to suspect that it would copyright register songs
if the same GVL gave the songs to Peemusic, whould would then
had had the legal right to register the songs, as it has the
obligation to do and as it would have been expected by the
|The logical reply is that GVL did not give the songs to Peermusic at any time.|
Note: As a founder of the Puerto Rico composer association, GVL knew that all publishers are obliged to copyright register, for protection purposes, the songs they are to manage for the benefit of the composer. Registration are never hidden from the composer. Opinion: Only a sick mind, such as that of the Peermusic executives involved would conceive such an idea.
2. The so called agreement included songs that GVL did not compose whereby GVL was assigning to Peer those rights. This included the song Borracho Sentimental.
3. The text "since I believe that external forces operate against my wishes and I cannot follow your instructions about the signing of these papers per your (communication) of April 24." suggests that a request to deceive or do something terribly wrongwas denied by Mr. Fonfrias. The letter of April 24 is document 1387, where Mr. Fonfrias is requested to get songs "without the author suspecting".
4. The text "I suggest that you prepare the documentation again to proceed to get the Venegas signature" suggests that Mr. Fonfrias thought that the so called agreement that GVL had signed was defective because in it GVL assigned various songs that GVL had not even composed.
5. The text "this matter was not handled in the correct manner" is indication of a botched job to deceive GVL and to carry out the instructions in 1387 ("Get the songs without the author suspecting").
6. Peer had many facts mixed up as to which songs GVL actually composed. For example GVL did compose the song NO ACEPTO OLVIDO and this letter says that GVL said he did not compose it. The reason for the mix-up is clear: Peer was getting song information about GVL songs from sources other than GVL and at the time depended on the so called blanket contract (which had no song names) to claim song ownership.
7. The comment "talking to this
gentleman drives anyone crazy" arises out of the probable fact
that GVL realized that Peer had deceived him on all matters.
Funny: Peer was driving Rafael Venegas crazy with the denial of
information and the run around he always got from Peer, clearly
explained by the Peer
lawyer statement that plaintiffs had no right to information.
This is a list of songs that Peer cannot license, publish or do anything with because they have no score (or were nor composed by GVL) but which are owned by Peer per the Fuste decree. The question here is how is it that GVL heirs, as his contract successors are to benefit from Peer's ownership if Peer it totally incapable of exploiting the songs, something consistent with the Peer history of not exploiting the songs:
(Assigned to Peermusic for 111 years?)
Cuando me vaya
Dejame que te diga
Llega la noche
Nada puedo hacer
Ni a la distancia
Noche sin ti
No accepto olvido
No, no digas nada
No te vayas asi
No vuelvas mas
For these songs, during discovery Peer did not supply any score. It is assumed then that Peer has none and not that the score were hidden or not found (anyway if you cannot find them for a legal case you will not find them if a singer wants the score to record or perform the song - Perhaps that is why Peer has not licensed any recording in the last 50 years), since without a score you cannot do any licensing of any song (legally speaking, of course, a meaninglessconcept for music publishers), why Peer wants to retain these songs is a mystery and Fuste never inquired as to why Peer wanted the songs at all.
If GVL gave Peer a score and it does not have it today, then Peer may have obliterated the song if no score or recording can be found by plaintiffs, as is the case for several songs.
What a coincidence: All the songs,
except Amor mi dulce amor and Miedo in the 1387
Peer letter (get songs "witout the author
suspecting") are here, as if GVL never gave Peer a score.
It all makes sense.
The Peermusic vs. ACEMLA lawsuit.
On a separate lawsuit Peermusic sued ACEMLA alleging that ACEMLA infringed by authorizing the use of their alleged Peer songs Genesis and Borracho Sentimental. Before filing this lawsuit Peer knew that ACEMLA was claiming to own all of the GVL songs that Peer claimed to own in this case. The question that arises is why Peer did not accuse ACEMLA of infringing all the songs that Peer now claims to own? We must speculate, but the answer seems simple. Peer felt it could not prove their ownership unless the 1964 letter was produced and that letter is flawed because page one of the letter was not good evidence because it may have been switched, since it had no signature of Guillermo Venegas. A well known tool was used: Write he specification on one page and get the signature on a page that says nothing.
This is the status of the two songs in the lawsuit:
Genesis: This song has never been owned by Peer - It may have been licensed to a Mexican publisher at one time, but that license did not cover the Puerto Rico (and possibly American) territory. Ownership was not issued to the Mexican publisher since GVL retained rights and ownership at the time was indivisible (a song could not have two owners).
Borracho Sentimental: It cannot be owned by Peer because the composer is unknown, regardless of the judges senseless decision in the Venegas vs. Peer case. And why was Borracho Sentimental included? A guess is that Peer found a GVL signed score (with notes in not understood Spanish) of the song and Peer thought it was an assignment or a recognition by GVL that Peer owned one of his songs. Speculative, it just makes sense to this analyst. Clearly it could not ba document that has a signature on a page that says nothing, the 1964 "letter from GVL". Quotation marks are used because GVL never wrote the letter, since he could not read or write English.
ASCAP, BMI and Peermusic
1. Peer has a very special relation to these performance rights organizations, ASCAP and BMI: Peer has had for years one of its executive on the board of directors of both organizations. Considering that both organization are allegedly competitors this is a very strange arrangement. This writer cannot imagine a similar situation occurring with any other competing enterprises, where two competitors have on their boar executives of a third corporation. These organizations have in the past been under investigation by the Justice Department for monopolistic practices it is strange that the sharing of directors has been allowed.
2. A Peer executive stated in the trial that "BMI uses a “statistical” method which Peer agreed to accept but does not understand." So here you have the biggest music publisher, Peer, that receives payments (millions of dollars) on behalf of songwriters (the beneficial owners of songs) and does not understand how the payments are calculated. This is an incredible statement that is meant to hide the truth. Peer must know how money is distributed by BMI (and ASCAP) but wants no one to know.
Note: BMI say they se the records of broadcasters to allocate royalties, not a statistical survey as Peer stated.
3. ASCAP alleges that payments are made based on surveys (meaning listening) of broadcasts. The Puerto Rico representative of ASCAP stated during a television program that these surveys are made by a contracted firm and that the name of the contracted firm is confidential. Of course common sense says that no one can listen to the radio and identify the songs that are played by name and songwriter or performance rights organization, because those facts are not usually given on the radio. Many years back it was common to hear the song and the songwriter name but that is no longer the case. The name of the licenser was never given. How a listener can identify (with an ASCAP catalog number) in the 200 million or so song catalog of ASCAP and other ASCAP affiliated performance organization in 100 or so countries is something that need explaining to composers. Until then, the so called "survey" by ASCAP is a highly questionable thing. Actually it could be so error plagued that It may actually be useless. ASCAP has the word on this.
4. The way that BMI and ASCAP allegedly determine how money is distributed makes no provision for performances other that in radio and television. For example a song that is played once on a radio program that no one is listening to may generate income for it's owner whereas a song that is performed 10,000 time in the nightclubs may not generate any income for its owner.
Venegas songs earning report for about 50 years.
Were the songs really that bad, as Peermusic said at trial, or were the songs acquired simly to place them in deep freeze storage forever? Why has a beautiful song as Ausencia never earned a single cent in over 50 years of being "administered" (or misadministered) by Peermusic?
Average earning per song: $944/19songs/50years = $1.00 per song per year.
None of the earning are from recordings made undee Peer administration of the song, as Peer never promoted any songs to get a new recording made. (Peer said at the trial that people, who never heard the songs, did not like the songs!!!)
The dissapearing escrow account:
This is what ACEMLA-LAMCO 's parties said when answering the lawsuit, about making an escrow account for storing money that may belong to plaintffs:
Additionally, Jose A. Lacomba stated in a 1997 radio program that ACEMLA-LAMCO had to set up an escrow accout to hold plaintiffs money, until claimed by plaintiffs (was that a lie too?).
Judge Fuste did not mention the money in any escrow escrow account nor dei he properly dispose of said money. Clearly any money in said accout (or was it a lie and perjury?) should have been awarded to plaintiffs.
After the trial Peermusic admission of what it denied at trial:
Peermusic acquired songs illegally
OK becaue no one complained?
News (El Nuevo Dia) on 5-14-05 : In
this newspaper story, Mr. Hiram Negrón, a Peermusic
representative and manager of the Peermusic office in Puerto
Rico, while arguing with GVL heirs in a press conference of
Rafael Venegas, admits that Peermusic illegally registered
songs, but that "no one complained" (as if that made it right).
Fuste beleived what Peermusic said at the trial and did not
believe what was claimed by plaintiffs and is now admitted by a
Departure and total
lack of impartiality
Judge Fusté, it is clear in this case, has made an extraordinary departure from any common-sense understanding of the Copyright Act. The purpose of the copyright act is to act as an incentive and to reward authors so they produce more works. Judge Fusté has acted and decided as if the purpose of the laws was to protect those that take away those rights.
Says Title 28, USC, Section 455:Conspiring to commit copyright infringement is a crime:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
To quote the Department of Justice in a news story of December 19, 2005, about Jason Jones and Jonathan Bryant, who were charged of charged with copyright crime. The three men are being accused of "conspiring to traffic in a technology used to circumvent a copyright protection system and conspiring to commit criminal copyright infringement," in violation of the Digital Millennium Copyright Act, according to a statement from the U.S. Attorney's Office for the Central District of California.
News: On May 17, 2002, John Sankus Jr. a leader of a software pirate ring was sentenced to 46 months in prison by U.S. District Judge Leonie Brinkema of the Eastern District of Virginia after Sankus pled guilty to conspiring to commit copyright infringement.
Distribution and reproduction rights:
17 U.S.C. §501(a). Section 106 grants the copyright owner several enumerated exclusive rights, including the rights of reproduction and distribution. 17 U.S.C. §§106(1) and (3).
Napster, 239 F.3d at 1014: "users who upload file names to the search index for others to copy violate plaintiffs' distribution rights".
ACEMLA and Peermusic, through others, gave song names to licensee customers so that the customers (radio stations) could record and perform the songs on, thereby violating the Venega's distribution rights.
Assignments to PHAM
GVL assigned non exclusive rights to PHAM for seven songs. The assignments were non-exclusive because GVL retained the rights to the Puerto Rico (and thus american) market. It is evident that PHAM then proceeded to transfer exclusive rights to Peer in violation of their agreement.
agreement is a nightmare and unworkable in nature, as there is
no way that a Mexican publisher can license songs in Mexico
for recordings that inevitably will migrate to the USA or
Puerto Rico through record companies, mechanical licensing and
performance rights organization that routinely sell and
license throughout the world.
END OF ANALYSIS
The author, Rafael Venegas, is the son of Guillermo Venegas.
"The laws are straight. It is the judges that have curves".
Due Process at Wikipedia
Page numbers are those of Fusté Opinion Page
An intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.