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IN THE FEDERAL COURT OF APPEALS FOR THE NINTH CIRCUIT FOR THE STATE OF CALIFORNIA

Case No. SC09-999
HOWARD BANNISTER AKA MP3 BANDIT,
Plaintiff,
Vs.
MICRODOT,
Respondent
__________________________________________________________________

ON DISCRETIONARY REVIEW FROM THE FEDERAL DISTRICT COURT CASE NO. 9C009-0009,

__________________________________________________________________
RESPONDENT MICRODOT ANSWER BRIEF ON THE MERITS

MATTHEWS, JOHN, FELIX, NATHAN.
9990, California Blvd.
Fourth Floor
California, Crl. 900
(900) 900-0000

PREFACE

In this brief, the petitioner HOWARD BANNISTER AKA MP3 BANDIT further referred to as BANNISTER. The respondent MICRODOT further referred to as MICRODOT. The following symbol will be used:
(R) – Record on Appeal

ISSUES PRESENTED FOR REVIEW

BANNISTER’S COMPOSITIONS CREATED THROUGH SAMPLING THE MICRODOT OPERATING SYSTEM DO CONSTITUTE AN INFRINGEMENT ON MICRODOT COPYRIGHT

STATEMENT OF THE CASE AND FACTS

This appeal emanates out of the post-judgement ruling by the Federal District Court on the issue of whether HOWARD BANNISTER’S AKA MP3 BANDIT (BANNISTER) music compositions produced digitally using the operating system microdot have the recognizable versions of the original sound by MICRODOT (R. 345-349).

The underlying case between BANNISTER AND MICRODOT emanated from the profits made by BANNISTER from his latest song “Microdot is Evil” where MICRODOT felt that the petitioner had infringed on its copyright by sampling its original version of the music (R.5-10). During the litigation, BANNISTER tried to prove that he had altered everything in the music but MICRODOT rejected this confession (R. 12, 176).

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BANNISTER is an internet-based electronic composer working under the brand name MP3 BANDIT. Most of his compositions remained unnoticed over the years but his latest song, “Microdot is Evil” which hit the airwaves. This received thousands of downloads prompting BANNISTER to change internet hosts to keep up with the demand. This also offered advertising space on the site generating about $1,000 per week (R. 130-135). On the discovery that BANNISTER has been using MICRODOT software, the latter filed a suit against him pursuant to the Copyright Act of 1976, which captures the concepts of fair use and exclusive rights (R. 250-252). The Federal District Court heard the issue of infringement MICRODOT copyright by BANNISTER.

At the hearing, BANNISTER’S counsel argued that there was no fixed number of permitted usage set forth in the fair use statute and cases did not define the exact amount of the original content that should be fairly used. In fact, the amount and substantiality of the portion of the original work used has to be critically considered regarding the case of BANNISTER (R 233). BANNISTER argued his case pursuant to Campbell vs. Acuff-Rose Music, Inc.510, U.S. 569 (1994) and Baxter vs. MCA (1987), where the 9th U.S. Circuit Court of Appeals held that infringement on copyright would only occur in cases where the ordinary lay hearer comparing the two works would recognize a similarity. On the other hand, MICRODOT’S counsel argued pursuant to Bridgeport Music, Inc. vs. Dimension Films, 401 F. 3d 647 (6th Cir.2004) stating that any form of sampling of an audio recording no matter how small or unrecognizable it might be, it is tantamount to copyright infringement.

At the conclusion of the hearing, the Federal District Court requested both the counsel to provide further memorandum of law to support the respective positions they had presented before the court (R. 322-327). The court relied on Bridgeport Music, Inc vs. Dimension Films ruling that compositions by BANNISTER were still recognizable versions of the original versions, and that the ultimate source of the profits were immaterial because the songs were used as a platform for his advertisement. Despite BANNISTER having admissed that he had used the compositions as the basis of his compositions, the court maintained that they sounded similar to the original version.

The petitioner timely filed his appeal to the court based on certification issued by the Second District.

SUMMARY OF THE ARGUMENT

An alibi for BANNISTER is produced via reference to the section of the Copyright Act of 1976 regarding fair use which eliminates infringement of copyright in circumstances where the amount and substantiality of the work that has been used is limited. This portion does not specify the exact amount of content to be derived from the original version of the piece of composition as well as the cases do not define the exact amount of usage of the exact work. The key principle here is fairness, meaning that not all the work could be used in other compositions, hence, leading to infringement of copyright. Failure to give the exact amount of permitted usage sets the stage open for fair use of any original version of the digital work. Therefore, it is apparently unreasonable to assert that the new composition has recognizable elements of the original version based on its title “Microdot is Evil.” Further, it is unreasonable to pick only one song of the many that were composed by BANNISTER, since he has also created many other songs using the MICRODOT operating system, hence, his current levels of profitability should not be the only basis of determining infringement of copyright. This would also mean that he had initially infringed MICRODOT copyright without any action being undertaken. Distribution of the songs through an MP3 technology also changes state of the case because there would have been apparent infringement in cases where the appellant used MICRODOT website to sale the music to his listeners.

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The court has issued several opinions addressing the extent of copyright infringement in instances of similar compositions. Insubstantial use of the original content does not necessarily amount to infringement of a company copyright. In fact, the issues have nothing in common. Newton vs. Diamond, 388 F. 3d 1189 (9th Cir.2004) offers support for BANNISTER’s argument that he only used the original versions as the basis of his compositions and did not take the whole original composition to complete his ones. In Newton, the court noted that the Beastie Boys’ use of the notes as written in the original version was insubstantial and that the novelty of the composition as compared to the original version was too insignificant for the Beastie Boys to be accused by the original holder of the composition. While the court recognized the need for a license to copy the original work, it emphasized the need for substantial infringement of the copyright as well. This means that a person cannot be sued for minimal usage of the work to complete his own compositions.

A large amount of initial cases can be referred to in support of BANNISTER’S positions, as they are almost similar to his situation. Availability of numerous cases in support of this case is a positive sign in success of the appeal. It is vital to use these cases as evidence to ensure that the case is finally determined, beyond reasonable doubt and that there was no sign of copyright infringement. For example, the case Blanch vs. Koons, 467, F. 3d. 244 (2nd Cir. 2006) is of the key cases that could be relied upon in resolving the issue of copyright infringement. The court agreed that despite taking some parts of the original work, the new sculpture was transformative in nature and did not prevent marketing of the original version of the sculpture. It was not a parody of the original photo, hence, did not constitute an infringement of the copyright. Infringement entails direct copying of the original work instead of transforming in compliance with the provisions of fair use.

Finally, BANNISTER’S admission that he had used the original version of the song to come up with his own unique compositions should compel the court to ignore the allegation that he had infringed on MICRODOT copyright. As it was clearly established in the Copyright Act of 1976, another person could fairly use a composition or a piece of art with unique modifications that do not resemble the original work. The above explanation fully describes the acctions of BANNISTER regarding his latest song “Microdot is Evil.” Based on these grounds, infringement of copyright by BANNISTER’S is beyond question, as it does not happen in any given circumstance and can be classified as fair use.

Therefore, the Second District order should be fully approved.

ARGUMENT

BANNISTER’S COMPOSITIONS CREATED BY MEANS OF SAMPLING THE MICRODOT OPERATING SYSTEM DO CONSTITUTE AN INFRINGEMENT OF MICRODOT COPYRIGHT

A.The Lower Court Failed to Determine Whether the Sampled Sounds were Recognizable in Themselves

It is quite apparent from the initial case that the Federal District Court failed to determine whether the sampled sounds were recognizable in themselves. In this case, BANNISTER admits that he relied on the original version of the song to come up with his own unique compositions. However, it remains to be seen whether the court proved beyond reasonable doubt that BANNISTER’S song was directly similar to the original version of MICRODOT. We content that the sound of BANNISTER’S composition are not recognizable in the original version, and even if they are, it is to minimal levels. It is vital for the court to determine completely that these sounds are similar, which did not happen in this particular case. The court apparently relied on the title “Microdot is Evil” to come up with its determination that the sampled sounds were recognizable in the original version. It would have only been fair in case where the court could have established the similarity in the two versions as seen from Grand Upright Music Ltd vs. Warner Brothers Records Inc (1991) where the defendant admitted to have used completely similar sounds of the original version. BANNISTER would have been served fair enough only if the court could have established the similarity through proper technological tests. Technology has developed over the years and it would only be fair to judge this case after precise determination of the facts. Therefore, in this case it was unacceptable to determine if the sounds are recognizable based only on the title of the sampled song and the court had to resort to other means and devices of verification.

B.The Portion of Fair Use in the Copyright Act of 1976 Does not State the Amount of Permitted Usage

BANNISTER admits to have taken some samples from the original version of the music from MICRODOT website. However, the lower court failed to recognize the aspect of fair use in this case, as it ruled against BANNISTER stating that he had infringed copyright. The most significant aspect to understand in this case is that apart from composing the song “Microdot is Evil,” BANNISTER has also created a platform for adverts that earned him $1,000 per week. Therefore, one of the purposes of composition was commercial use, therefore, eliminating any chance of copyright infringement. Fair use allows for the use of the copyrighted work for commercial purposes, as BANNISTER had exactly done. In fact, he had only taken some part of the original composition, hence, avoiding infringement on the company copyright. In Jarvis vs. A&M Records, 827 F. Supp. 282 (D.N.J. 1993) the court held that copyright infringement could only be proven if the holder is able to show that there is substantial similarity between the original work and the sampled piece. We content that the lower court has no jurisdiction to measure the amount of permitted usage, and it did not do this to prove BANNISTER guilty of the offense. The origin of his profits was material and should has been relied upon to prove that this was only a fair usage of the original material. Ruling out the materiality of the source of his profits is an unfair judgment against BANNISTE, a circumstance to be reviewed by the court. Similarity between this case and the one in question would be instrumental in proving his innocence. As long as the fair use portion remains as it is stated in the Act, BANNISTER has the right to be proven innocent in this case. There have been no significant changes which this allows him to manipulate the original version as he deems.

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C.Blanch vs. Koons is Persuasive Authority for Affirmance

Despite the focus on different element of art, Blanch vs. Koons, 467. F. 3d 244 (2d Cir. 2006) holds true to the views presented by BANNISTER. In Blanch, the Second District addressed this matter in the context of the defendant appropriating a picture from a fashion magazine showing woman’s legs and feet wearing Gucci sandals. The defendant used the part of the photo, particularly, that depictiong legs alongside others in making his new pictorial representations. This picture was used for satirical purposes, but the plaintiff sued the defendant claiming compensation for copyright infringement. The court agreed with Koon that his work was transformative and not a parody of the original work. As much as he had taken some parts of the original work, this was not tantamount to parody. In fact, the case is similar to BANNISTER case as the latter agrees to have used the original composition to come up with new samples. This does not directly amount to parody and is more of a transformation where he had modified the work, and has also ensured that it is being used as a part of his advertisement.

D.The Medium of Distribution Eliminates any Changes of Copyright Infringement

Considering the case, it is understood that BANNISTER distributed his music using MP3 technology. He did not distribute the music using the company website, and this discharges him from the accusation of copyright infringement. The fact that he did not sell the compositions directly did not change commercial intent of the work. The main thing that remains to be seen is that he solely aimed at using it for commercial purpose. BANNISTER has accepted the intention of using these compositions for continued commercial purpose. As much as it remains for commercial use, the goal posts will not shift and the defendant will be found not guilty of copyright infringement . We remain optimistic that this court will see to this and vindicate BANNISTER of infringement on MICRODOT copyright.

CONCLUSION

For the foregoing reasons, the judgement on appeal must be affirmed in all aspects.

CERTIFICATE OF SERVICE

I CERTIFY that a copy of this case has been adequately furnished, by email, on this day 16th March, 2019 to Calvin F. , Esq., 9900 New City Boulevard, Suite 99, San Diego, California, 99990; Michael G. Washington, Esq., 9900 Presidential Boulevard, Suite 90, Los Angeles, California, 9999; Maryanne W., Esq., 9900 Memorial Ave., Suite 99, San Francisco, California 9009.

MATTHEWS, JOHN, FELIX, NATHAN.
9990, California Blvd.
Fourth Floor
California, Crl. 99090
(999) 900-9900
By:___________
PAUL MARVIN
California Bar No. 99900

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