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Apple settles with the Harold Arlen estate in dispute over unlicensed downloads

By | Published on Tuesday 6 September 2022

Harold Arlen iTunes

Apple has settled its ongoing copyright dispute with the estates of the Harold Arlen, Ray Henderson and Harry Warren in relation to the sale of unlicensed recordings on the tech giant’s iTunes Store in the US.

It was originally the estate of Arlen – who wrote ‘Over The Rainbow’, ‘I’ve Got The World On A String’ and ‘Get Happy’, among many other famous works – that went legal on this issue, with the other estates subsequently joining in. At one point there was litigation targeting Amazon, Microsoft and Google as well, but those disputes were settled along the way.

The lawsuits actually centred on the song rights controlled by the estates. The mechanical copying of songs is usually covered by a compulsory licence in the US. However, that compulsory licence only applies if the recording being sold has been properly licensed.

If the sale of the recording actually infringes copyright, then the compulsory licence does not apply, meaning the copyright in the song is being infringed too.

And while, with downloads in the US, it is usually the responsibility of labels to sort out the licensing of the song rights, download stores are nevertheless involved in the infringement.

There was quite a lot of legal back and forth as these disputes went through the motions, with lawsuits being dismissed and then re-filed. At one point it looked like the Apple litigation was going to proceed to a full court hearing before a jury, with the judge overseeing the case seemingly unsure whether he should grant any of the summary judgements that the two sides had requested.

But then in March this year said judge did issue a summary judgement on one key point, which was whether or not any alleged infringement on Apple’s part was ‘wilful’. This is always important in US copyright cases, because if a copyright owner can show that infringement was wilful, then the damages they can claim are much higher. However, the judge ruled that, even if Apple was liable for infringement, it wasn’t wilful infringement.

The terms of the settlement now reached between Apple and the estates are not known. But, according to Reuters, all parties informed the court last week that a deal had been done and, therefore, this particular digital music dispute is at an end.