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:

By 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". Plain theft.
By ACEMLA-LAMCO parties, who stole many songs and even copyright registered so as to fraudulently pass themselves as the owners. ACEMLA-LAMCO even has the tenacity of arguing that the local Puerto Rico courts had not decided that the children of Guillermo Venegas owned his songs when in fact that is what the courts had decided. 
     ACEMLA-LAMCO had the further tenacity of claiming the ownership of 10 songs based on a fictitious assignment by Guillermo Venegas (this document was the so called proof). See note. No sanction was given by Judge Fuste to ACEMLA-LAMCO and their attorney (Angel Caro) for their tenacity of plainly lying to the court. Plainly registering songs at the copyright office is a criminal offense (Section 506(e):False representation) and said offense went unnoticed (really?) by the judge. Additionally, other criminal offences have been comitted by ACEMLA-LAMCO under Puerto Rico law, such as the appropiation of intellectual property. This also went unnoticed, evidently, by the judge.

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.

Tite Curet Alonso
Mr. Curet, now deceased, said to be the father of Salsa music wrote many very successful songs. Sometime in about the late 1990's Mr. Curet signed a songwriter contract with ACEMLA. Thereafter his music is not heard on the radio. Radio stations do not want a performance license from ACEMLA allegedly because ACEMLA has sued many radio stations or charges too much or whatever. Since radio stations stopped playing the music of Mr. Curet, his music was not of any interest to record companies, who need that records be performed on radio for records to sell well. This is what the singer Ruben Blades said to explain the failure of his project for a record of Mr. Curet's work.  As result ACEMLA, it is believed, is not getting any income from the music of Mr. Curet. At the same time Peermusic claims ownership of many of Mr. Curet's song. The conflicting ownership claims makes the songs of Mr. Curet even less appealing to record producers, so that the sale of records almost has dried up. The Venegas music has been a victim just like the music of Mr. Curet of similar circumstances. That makes a situation where the income received by the publishers is extremely low. Per Judge Fusté, the damage awards were calculated based on income by the publishers. At no time dis the judge consider the actual damages sufferd by the victims, a clear omission of duty, since it was required that he award actual damages if they were higher than the statutory damages, which he apparently (a guess here because the judge, in his careleness did not specify if his award was of statutory or actual damages). Clearly a failed logic that favors the music publishers who raped the composers and the heirs, since the losses of the composers or the heirs are mainly the income that was not made because of the actions (or breach of contract) by the publishers and not the low income, which could be none, of the publishers. As it is, if it had turned out that the publishers had not earned any money, the Venegas heirs would have obtained nothing from this case even though the action of the publishers have driven them to de-facto bankrupcy and have prevented ther exploitation of the music the Venegas's own. The readers are urged to think about this strange behavior by the judge.

Then there is the....
THE MYSTERY OF THE ARDILA LULLE DAMAGE AWARD OF $1.6MILLION

     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.

The Analyst

After the trial

Additional stolen songs:

After the trial the theft of additional songs by Peermusic has been discovered or realized:

Borre tu amor  (purchased 3-06 at Walgreens)
Mi Cabaña
Llega la noche buena
Como es la vida
Somos diferente
Quiero vivir en Puerto Rico

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.

Copyright Law: Violations are felonies

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 19,2005:
William xxxxxxxxxx, and Michael xxxxxxxxxxx, pleaded guilty to conspiracy to commit felony criminal copyright infringement in the U.S. District Court for the District of Columbia. These face up to 5 years in jail and $250,000 in fines. Sentencing will be on April 29th 2005.

On February 26, 2006 these facts were published by the US Justice Department about another case of  conspiracy to commit criminal copyright infringement.

Interesting: Why were the conspiracies to steal the music of GVL not seen (or referred to the FBI) by Judge Fusté? Is crime law applied to some and not to others?

Appeal:
Appeal has been made by Plaintiffs and Defendants.

Arguments were made through written brief on 12-4-04:
12-22-04 Plaintiffs Appeal Brief (Acrobat file)

On 5-5-05 an oral hearing was held at boston

An interesting message from ACEMLA-LAMCO
On September 23, 2005 Mr. Jose Bernard, of  ACEMLA-LAMCO, published a Press Release, in Spanish. In it, it is stated (translated here):

"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.
b. The award of 20% or 50% is only for 8 songs, which we estimate to be about 1 percent of the musical production of Guillermo Venegas. Here ACEMLA-LAMCO leads readers to believe that Chavez owns or owned a 50 percent share of all the music, when in fact the most she (not ACEMLA-LAMCO) can claim is a useless share in 8 songs.... useless because a partial license to use the songs may be illegal (says Harry Fox, the primary licensor of music for recordings in the USA ).
b. The message fails to say that the awarding of rights to Chavez means a reversal of what the Puerto Rico Supreme court had already decided (that Chavez had no rights whatsoever) and that the court's decision is a violation of res judicata (already judged and decided) and of jurisdiction, as only the US Supreme court can reverse a Puerto Rico Supreme court decision.

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.

Judge José A. Fusté Opinion of May 19, 2004 (PDF)
in Venegas vs. Peermusic case Civil No. 01-1215 (JAF)

Plaintiffs:
GVL Inc. and children of Guillermo Venegas Lloveras (GVL)
Represented by Attorneys Heath W. Hoglund Kramer and Samuel Pamias Portalatin.

Defendant:
Peermusic (Peer) - A music publisher
Represented by Attorneys Francisco A. Besosa and Barry I. Slotnick.
Note: On May, 2005, President George Bush nominated Mr. Besosa, a former lawyer for the U.S. Justice Department and member of several important District Court of Puerto Rico comitees, for the position of Federal Judge, for the District Court of Puerto Rico.

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.

Defendants (LAMCO parties):
ACEMLA - A performance rights organization
Represented by Attorney Angel Caro.
LAMCO - A music publisher
Represented by Attorney Angel Caro.
Luis Raul Bernard - Owner-Presidentt of ACEMLA-LAMCO
Represented by Attorney Angel Caro.
Lucy Chavez Butler: GVL estate-executor (who gave the music she did not own to ACEMLA-LAMCO)
Jose A. Lacomba - An ACEMLA employee and his husband of Lucy Chavez Butler
Also are represented by the same attorney, Attorney Angel Caro.

Also, see the following errors.

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 recouped:
Here we should note that the legal fees that plaintiffs requested be paid by LAMCO parties was $76,932. That is the cost of litigating this case against LAMCO parties, to only recuperate a $16,000 award, which is the money paid to LAMCO parties by another victim of said LAMCO parties. Plaintiff sued LAMCO parties because they stole all their 500+ songs and the result is a net loss of $63,932 ($76,932 - $16,000). The judge refused to order the payment of the $76,932 in legal fees to plaintiff on the ground that the claim was made too late. What a riot!!!

Copyright Law: Violations are felonies
This was ignored by the Judge.

Analyst comment:
None.

SEE DECEIT AND PLAYING BY PEERMUSIC WITH HEIRS

1997: PEERMUSIC  ASK VENEGAS HEIRS FOR ASSIGNMENT OF SONGS

Analyst comment:
The logic is simple: Only owners of a song can assign the rights to others to administer. Peer, when pressed by plaintiffs before assignment request to show how it acquired the GVL songs, was unable to show any proof other than a document without any song name, an unacceptable proof.

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.

Ownership Interruption
Note about the Peermusic offer to plaintiffs and Puerto Rico law:
Puerto Rico statute of limitations law (Art. 1848 Reconocimiento interrumpe la posesión. 31 L.P.R.A. sec. 5269) , it is stated that ownership of property is interrupted though an express or tacit acknowledgment that the owner makes (to another), as Peermusic did in 1997 when it requested assignments from plaintiffs. Surely a tacit acknowledgment that plaintiffs were the owners... thus the Peermusic possession (ownership), if it had been valid prior to 1997, was interrupted. New York statute of limitation law say that the Puerto Rico statute of limitations law applies.

See: Additional stolen songs. 

Analyst comment:
Constitutional rights are being violated here: By decreeing that Borracho Sentimental and other songs for which no proof was tendered that GVL wrote, Fusté may be violating the constitutional rights (taking of property) of the real, yet unidentified owner.

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. 

See this letter from Rafael Venegas

Analyst comments:
1. The moral rights to all GVL songs and to the name GVL belong to plaintiffs as decreed by Puerto Rico law, regardless of who owns the copyrights.
2. If GVL gave Peermusic the scores or a recording and Peermusic destroyed them or lost them, the songs may then be lost forever and plaintiffs will never benefir from those songs and that constitutes great damages, morally and economically.The question is then, what is the value of those damages and is Peermusic responsible for the loss and the damages? Strange: The judge said nothing about this as if he did not detect anything fishy here, a major error.

Analyst comment:
Plaintiffs never withdrew the claim, therefore it is an unresolved matter of the case.

And no legal expenses had to be paid by ACEMLA-LAMCO parties.

Analyst comment:
The absurd ACEMLA and Peermusic sentences:
Plaintiffs are awarded $21,000 for the illegal registering of copyrights and licensing by ACEMLA and Peer, who, by their action have have stolen hundreds of songs, have  destroyed lives and plaintiffs businesses. Glenn Monroig, on the other hand was awarded by the same court over $7.5 million for the mere use of a single song and simple use without license is far less serious violation than registering and claiming to own the songs and issuing licenses to others, as have done ACEMLA and Peermusic.  Plaintiffs also get to loose the rights to 21 songs, songs which are already in the Peermusic dead pile of songs, none of which have been licensed by Peermusic in the last 50 years, to plaintiffs knowledge. Plaintiffs are also stuck with two huge legal bills thanks to Mr. Fuste. The question here: Are cases decided depending on who has the right connections or the right lawyer or the right judge or all of the above?

The Legal Expenses defat of plaintiffs:
The cost in legal fees to get the $21,000 mentioned above as awards, were close to $200,000, of which only $23,000 were paid by Peermusic and none by LAMCO parties.
See here: THE COST OF GETTING $21,000 AWARDS: OVER $250,000

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.

Analyst comment:
This document had a purpose: Get GVL songs "without the author suspecting". Judge Fuste sees nothing wrong and is silent about the document on his decision.

Analyst comment:
The absurd claim made by Judge Fuste is totally made up and fabricated by himself out of own volition. No one ever said such an absurd statement at the trial and if anyone did it would have been perjury.

Analyst comment:
A clear and crass error by Judge Fuste. In his decision, Fuste claims that actual performances of songs under an ACEMLA licence was not proven, so infringement by ACEMLA and others was not proven. That in itself is a ridiculous proposition that pretends that paying a song is a worse type of infringement than the stealing of a songs, a criminal infringement. Fuste also forgets that the infringement by one of the defendants (Chavez) was to authorize ACEMLA to license other, and ACEMLA did aurhorized others and authorized others to authorize others down the line. Per Fuste Chavez did not commit infringement (because authorization is not infringement - the law says otherwise - and all Chavz did was authorize ACEMLA to become and act as owner) and has only had to return whatever royalties she collected from ACEMLA, which are $5,000 of the same $16,000 that ACEMLA was ordered to restitute, which anyway comes out of someone else's pocket.

The judge sided with the thives.
Apparently no one has heard of the Hotaling v. Church of Jesus Christ of Latter-Day Saints case, where it was established that the mere listing of a work in a library catalogue was infringement, even if there was no proof anyone actually borrowed the book (microfiche in the case). The decision states:

Hotaling v. Church of Jesus Christ of Latter-Day Saints
U.S. Court of Appeals Fourth Circuit
June 30, 1997
118 F.3d 199, 43 USPQ2d 1299

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.

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.

Juge Perez Gimenez stated:

[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.

Interesting facts:
1. Judge Perez Gimenez based his decision on the Holing jurisprudence which we had posted here for a long time.
2. In this case the Holing jurisprudence was not even required in the case of Chavez, the executor of the Venegas estate, because the executor had illegally appropriated the songs and gave them to ACEMLA. who in turn licensed others. There is no way the judge Fuste could not realize the infringement of Chavez, because ACEMLA in fact had issued licenses for their catalog which included the songs that the executor had illegally appropriated. Why he ignored the separate infringement acts by the executor (Chavez) is for legal scholars to decide.

The judge: Stealing a song for many years is not as bad as singing it once.

Analyst comment:
None other than that the absurdity of the sentence is obvious.
The judge sided with the thives.

Analyst comment:
The consequences are obvious.

Analyst comment:
This gets as ridiculous as is possible because the "no talk" posture of Peermusic is the only cause of this lawsuit. The Fuste decisions can also means that composers that assign rights to publishers (Peer) or their successors who are beneficial owners of the songs that are assigned, have no rights to information from their agent publisher. Certainly this "no talk" principle pronounced by Mr. Slotnick is the reason Peermusic did not reply to letter of plaintiffs attorney Benicio Sanchez Rivera which provoked the lawsuit. The fact that the letter (and previous ones directly from plaintiffs) were not answered provoked the lawsuit against Peer. Conclusion: The court supports tyranny against composers and artists, or at least, does nothing about it.

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!

Analyst comment:
The turnaround by Fuste means that ACEMLA keeps the $43,000 that was paid by Banco Popular for the performance of Genesis to ACEMLA or the entire amount of $260,000. Interestingly Judge Fuste did not even order ACEMLA to returned illegally collected performance money to plaintiffs.

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.

More on Banco Popular money split and award to plaintiffs...

Ignored by Judge Fuste:
Bank Fraud is a felony

Ignored by Judge Fuste:
The disappeared ACEMLA-LAMCO escrow account money

Analyst comment:
The law sets minimum statutory damages of $750 per infringement. If the estate executor, who gave all GVL songs to ACEMLA  infringed 700 songs by the action of giving the songs to ACEMLA, then the minimum was $750 x 700 or $52,500 in damages, minimum. Since the estate executor infringement was not a simple use, but rather the taking of the songs for many years, then the reasonable damages should be much higher. This is part of the absurd sentence. Since ACEMLA was a contributory infringer, they should also be responsible for whatever amount estate executor cannot pay. Again, the absurdity of the sentence is obvious.

The judge: Stealing a song for many years is not as bad as singing it once.

Analyst comment:
Judge Fuste used a wrong theory to deny rescission. Judge Fuste did not even rescind the Peermusic ownership of the song Borracho Sentimental, which GVL did not compose and could not have assigned to Peer. We think this might be related to the fact that the song Borracho Sentimental is pending in Peermusic vs, ACEMLA case under Judge Perez-Gimenez.

Interesting: 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:
- Fraud (get songs "without the authotr suspecting")
- Failure of considerarion (Peermusic got songs for nothing).
- Breach of contract (Peermusic never promoted songs and did not pay the almost nothing royalties that has accrued)
- Inability. Peermusic was never able to get any new recording that heirs now of of a GVL song it now claims to own in 50 years. Peermusic is also unable to exploit the songs because it has no scores for the songs.

The judge 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:

Analyst comment:
Judge Fuste reduced the number of registered (stolen) songs to makes LAMCO look less bad.The judge omits also the important fact that LAMCO had no right to register the songs and that it was done without the plaintiffs, the song owners, being notified and with malice. None of this counted at the time of determining damages by LAMCO partie. Amazing.

The facts:
1. The estate executor gave LAMCO every GVL song, then known and unknown, estimated at about 700 songs. Each of those songs was in fact infringed.
2. The LAMCO catalog (on 8-14-04) posted on the Internet had listed 267 songs. Each song was infringed.
3. False copyrght registration are criminal offenses per the Copyright Act, section 506(e): (e) False Representation. - 
    Any person who knowingly makes a  false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500. 
The judged overlooked the criminal acts. 

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:
1. Chavez, who assigned the rights to ACEMLA-LAMCO.
2. LAMCO, by copying the songs for the purpose of registering them at the copyright office.
3. ACEMLA. by authorizing their airplay to radio stations and others.
This means that there had to be an award of 240 infringed works. For these infringements not a single cent was awarded in damages.
More: LAMCO party damages...

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.

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?
Was Peer "self dealing" when using the power of attorney for assigning themselves songs for a renewal period even though they were a total failure in their exploitation of the songs, not getting a single new recording in almost 800 song years (20 songs over 40 years) in any song assigned to them by Guillermo Venegas..? 

5. The time and method of using a power of attorney where:
     a. The person using the power of attorney was not the assignee of the power.
     b. There is no way to tell the name of the actual signer or forger.
     c. The assignor of the power was not notified when the power was used.
     d. The signature of the author was not written by author (forged?)
         and no mention is made that there was a power of attorney to back up the signature.
     e. The power had anyway expired in 1964 along with the contract that assigned the power of attorney.
      f. The law requires the actual signature of the author. Peer alleged that the power of attorney given by GVL made the actual signature unecessary, but the so called power of attorney was not valid.
      g. No evidence was ever presented that in fact GVL ever got a copy of the contract of 1952 where he gave the possibly illegal power of attorney.
       h. The power of attorney was not notarized, therefore ilegal.
6. Peermusic failure to pay royalties for past 10 years.
7. What ACEMLA-LAMCO must do with their illegal copyright registrations.

etc. etc.

8-3

Analyst comment:
1. The letter 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.
1. Letter is not signed by Peermusic and that was a requirement on the letter itself. So the letter is an invalid contract at best.
2. Letter was written at the same time and place as another letter where one Peermusic executive tells another to get GVL songs "without the author suspecting". Clearly fraud was taking place.
3. The page with all the imposrtant text and song names is unsigned, so tha a swith was very possible, by the same ones cerrying out the ""without the author suspecting".
4. At least one song and pssiblt many songs in the lettee were not composed by GVL but now belong to Peer, even though Peermusic has no musical score.

"GVL to Peer" Letter
Note: The letter was actually made by Peer, so it is a Peer to GVL letter.
Also the letter was never recorded by Peer as required by the copyright law then in effect.

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!!! 

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

(2) Defendants.

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:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action. 

In another federal court case the judge defined the normal legal reasons -indicia- for joinder:
    1. The claims in the complaint indicate that the claims result from the same incident or incidents;
    2. The claims against the defendants do not require different trials, since there would be no different evidence, no different theories, no different defenses, etc.
    3. There will be the same issues of fact;
    4. There is indication that plaintiff's alleged injuries arose from the same transactions or occurrences.

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.

See data here that shows that the less than $2.000 was at least $39,000.

Analyst comment:
As always, everything surrounding Peer is shrouded in deceit. 

Analyst comment:
A jury, composed of non lawyers and would argue among themselves the issue of the trial, would have decided in a few days only.

It is incomprehensible, to take so long to err so much.

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. 

Analyst comment:
See here for more on owneship.

Analyst comment:
To this day (4-1-05) Peer has not notified ASCAP to remove the songs from their catalog, meaning that the last license issued by ASCAP is a license to use these songs... so the infringement contunues after the trial ended. The ASCAP web page still has the songs in their catalog, as verified on April 2005. With ACEMLA-LAMCO and Peermusic-ASCAP and plaintiffs all claiming ownership rights to this song the effect is the the song is no longer performed by anyone in Puerto Rico out of fear of using the song with a license from the wrong party.

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.

Analyst comment:
This is a repeat error. In year 2000 the Puerto Rico courts decided that the music of GVL belonged to plaintiffs. No judicial order was issued by the court. As a result ACEMLA-LAMCO has not been ordered to STOP doing business with the music of GVL, or even requested by anyone to return to plaintiffs whatever musical material they received from the widow. As a result ACEMLA-LAMCO parties know of GVL songs that plaintiffs, who are the real owners, know nothing about. It seems as if the judicial system is not set up for performing simple, logical actions so that cases are resoved in a final manner and do not require lawsuit after lawsuit to achive waht is just. Fuste, who is the president of the court did not understand this nor showed any sympathy towards plaintiffs plight.

Analyst comment:
Peer has never explained to anyone, including the judge, what is the legal basis for their claiming to own the songs for "the rest of the world". Of course this could be justified under the Peer theory that plaintiffs have no right to information.

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. 

9-6-85     Cuando me vaya  (0044)
12-21-81 Dejame que te diga (0049)
12-21-81 No te vayas asi (0049)
7-9-76     Mas alla   (0067)
6-23-83   Por el camino  (0079)
6-23-83   Una cancion   (0079)
6-2-80     Cien mil corazones (0100)
6-2-80     Una cancion (0199)

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.

Analyst comment:
At the time that these renewal assignmets were made GVL was alive, so Peer had two options: Get the actual GVL signature to obtain the renewal period rights, that is, obtain the rights from GVL or accept that the renewal rights were then onward owned by GVL. In effect, the rights returned to GVL. This is what the Copyright Act says:

Sec. 205. Recordation of transfers and other documents
     (a) Conditions for Recordation. - 
Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. 

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:
HOW MAY SONGS THAT ARE IN THE PEERMUSIC CATALOG ARE THERE ILLEGALLY BECAUSE PEERMUSIC HAS NO RIGHTS TO THE SONGS BECAUSE THEY REVERTED TO THE AUTHOR WHO DID NOT RENEW THE ASSIGNMENTS WHEN THE RENEWAL PERIOD ARRIVED? 100,000 OR MORE? WHO KNOWS. CERTAINLY ALL SONGS GVL "ASSIGNED" TO PEERMUSIC ARE IN THIS "ILLEGAL OWNERSHIP" CATEGORY. CERTAINLY, IF PEERMUSIC NEVER EXPLAINED THESE RENEWAL RIGHTS TO THE HEIRS OF GVL, AND NEVER RESPECTED THEM, WE MUST ASSUME ALL COMPOSERS WERE EQUALLY ILL TREATED. WILL PEER GET A CLASS ACTION LAWSUIT FROM THESE COMPOSERS AND HEIRS? WHO KNOWS!

Biggest scam of all time: Renewal Rights Appropiation

Analyst comment:
None. It is all very clear. Fuste thinks (or wants others to beleive) that BPPR (Banco Popular de Puerto Rico) was billed for and paid $43,000 to obtain a retroactive license for a song they had not used. It is also clear that by LAMCO issued fraudulent licenses to Banco Popular because it did not have rights over the licensed song, Genesis. 

Note: Banco Popular money split and award to plaintiffs
ACEMLA parties alleged that the money ($260,000) paid by BPPR was for the performance of all the songs in their catalog (repertoire). This allegation has several problems:
a. ACEMLA produced no document to show it ever gave BPPR a copy of their catalog and no one knows how many GVL songs may have been licensed. A copy of the catalog was not produced by ACEMLA during discovery for the inspection by plaintiffs. Recently (early 2005) ACEMLA had 267 GVL songs listed on their web page.
b. No one knows how many sogs were or are currently in the ACEMLA repertoire. Rumor has it that the repertoire is anywhere from 6,000 to 15,000 songs, many songs being there illegally because they are not owned by ACEMLA or because they are in the public domain).
c. In all events, entities like ACEMLA should divide the money received through a blanket license for an entire catalog among the beneficial owners based on the actual performances, whether based on actual count of performances or on a sampling, as other performance rights orgnizations do or say they do. ACEMLA has never shown how the $260,000 was split among the various beneficial owners they represent and other owners that they do not represent. The judge did not award a single cent from the $260,000 to plaintiffs for the ilegal use licensing of Genesis or any of the other hundreds of GVL songs  that allegedly were included in the blanket lisenses issued by ACEMLA. It is as if plaintiffs have no right to share in the $260,000 even thought their song was used by BPPR and paid for (without their permission) and paid ACEMLA for the use. The rule for copyright infringement damages says that if ACEMLA did not show deductibles (how money was split), the entire $260,000 had to be awarded 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.

See Fuste Opinion Page: 74-17

Ignored by Judge Fuste:
Copyright Law: Violations are felonies

Ignored by Judge Fuste:
Bank Fraud is a felony

Ignored by Judge Fuste:
The disappeared ACEMLA-LAMCO escrow account money

The other LAMCO infringements:
A royalty report of LAMCO dated 3-11-02 nd covering a 1999-2001 period, indicates that LAMCO licensed at least these Venegas songs. Miedo, Tu bien lo sabes, Desde que te marchaste, No me digan cobarde. for which royalties were received, from many record companies and coutries. Each of these records constitute an infringement by LAMCO. The court ignored these infrinements by LAMCO.
 

1. US LAW
Sec. 501. Infringement of copyright 
     (a) Anyone who violates any of the exclusive rights of the copyright owner      as provided by sections 106 through 118 or of the author as provided in section 106A(a),

Sec. 106. Exclusive rights in copyrighted works
     Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: 

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.

2. WIPO GENEVA CONVENTION 
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA DIPLOMATIC CONFERENCE
ON CERTAIN COPYRIGHT AND NEIGHBORING RIGHTS QUESTIONS
Geneva, December 2 to 20, 1996
WIPO COPYRIGHT TREATY

Article 6 
Right of Distribution
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

Article 8
Right of Communication to the Public
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

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.

3. PEER'S OWN ARGUMENT IN PEER VS. LAMCO CASE:
In violation of its exclusive right “to authorize,” Peer contended that LAMCO “ha[d] issued public performance licenses to and collected royalties from broadcasters for the works contained in [LAMCO’s] Catalog” which were owned by Peer.  [Id.]
In the same brief, Peer well explained the legal basis for finding that LAMCO’s authorization to broadcasters of works owned by Peer constitutes infringement: While most copyright infringement cases involve unauthorized copying of a plaintiff’s work, any unauthorized use or violation of a copyright owner’s exclusive rights set forth in § 106 constitutes an act of copyright infringement.  Copyright Act, § 501.  See Repp v. Webber, 914 F.Supp. 80, 83 (S.D.N.Y. 1996) (defendants’ unauthorized granting of licenses to third parties to reproduce copies of song constituted infringing acts); CMAX/Cleveland, Inc. v. UCR, Inc., 804 F.Supp. 337, 351, 357 (M.D. Ga. 1992) (defendants infringed plaintiff’s copyright in computer software system by asserting ownership over infringing version of software and licensing the right to use the infringing software to third parties).  See generally Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 435 n.17 (1984) (“[A]n infringer is not merely one who used 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.”). Accordingly, the unauthorized licensing of a copyrighted composition for radio broadcast, is an act of copyright infringement.

4. PEER'S OWN  ARGUMENT IN PEERMUSIC vs. P2P
In Peermusic's lawsuit against peer-to-peer (p2p) organizations filed on 11-19-01 (Case 01-09923, US Disctrict Court, Central Disctrict of California, Western Division)) Peermusic, as plaintiff, alleges that the listing of a song in the p2p database is infringement. Text on the lawsuit:

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.

5. COMMON SENSE LOGIC
It is difficult to imagine a law (or procedure) that sets a requirement and if the requirement is not met  there is no penalty. Copyright law requires that authorization to copy or to perform come from the copyright holder. It is senseless that if that authorization is given by a non copyright holder, there is no penalty for the violator of the law, the no owners.

6. COMMON SENSE LOGIC, PART 2
Clearly the argument of the defendants reads like this:
"Even if we licensed without having a right to do so, the fact that plaintiffs could not prove that the licensees actually used their songs proves we did no wrong. Also the fact that we claimed to be the owners of the songs without being the owner, means nothing and the the fact that our illegal claim of ownership destroyed the business prospects of plaintiff is also meaningless. Also the fact that we authorized others to authorize others is also meaningless." 
The judge agreed.

7. Double/Triple level infringements were made
For example, when Peermusic authorized ASCAP to issue licenses on Peer's behal, that was an act of infringement. Whe later on ASCAP issued the licenses that was also an infringement and a consumation of the frst infringement. Additionally ASCAP authorized others to issue performance licenses in other countries. The same applies to the authorization made to LAMCO parties by the executrix Chavez. Sje authorized ACEMLA who in turn authorized others who in turn authorized others.

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.

Analyst comment:
None. It is all very clear.

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.

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.

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?.

j. The children of the composer have been exposed to an unjustified and ridiculous lawyer fee charge of about 1 million dollars.
 

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.
Very strange: While LAMCO parties claimed that they had renewal rights on some songs, they made no such claim for termination rights. Fuste awarded 20 percent on 8 renewal songs, but failed to award termination rights to LAMCO parties and they would have been a 50 percent share in 21 songs. Well not so strange after all. By giving LAMCO parties 20 percent on 8 songs, that means that less rights belong to plaintiffs, GVL heirs, whereas if termination rights had been awarded to LAMCO parties, those rights would have meant less rights for Peermusic.

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.

Note: The assignment request by Peer was spoken of at trial by Rafael Venegas and the assignment request documents are part of plaintiff exhibits.
See Peer assignment request in 1997
See ownership interruption

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.

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.

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  Page 2
Notes:
The letter was actually made by Peer, so it is a Peer to GVL letter.
If GVL had refused to signed this letter, the songs would be stolen by Peer anyway per the "without the author suspecting" plan.

Also the letter was never recorded by Peer as required by the copyright law then in effect.
In essence, by not signing the agreement and forwarding a signed copy to the composer, Peer aquired no responsibility to the composer to exploit the songs for his benefit.

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  Page 2
Note: The letter was actually made by Peer, so it is a Peer to GVL letter.
If GVL had refused to signed this letter, the songs would be stolen by Peer anyway per the "without the author suspecting" plan.

Also the letter was never recorded by Peer as required by the copyright law then in effect.
In essence, by not signing the agreement and forwarding a signed copy to the composer, Peer aquired no responsibility to the composer to exploit the songs for his benefit.

Note: For 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.

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  Page 2
Note: The letter was actually made by Peer, so it is a Peer to GVL letter.
In essence, by not signing the agreement and forwarding a signed copy to the composer, Peer aquired no responsibility to the composer to exploit the songs for his benefit.

If GVL had refused to signed this letter, the songs would be stolen by Peer anyway per the "without the author suspecting" plan.

More here: Renewal rights error.

Note: The letter of agreement was never recorded by Peer as required by the 1909 Copyright Act
§ 30.Same; record
Every assignment of copyright shall be recorded in the copyright office within three
calendar months after its execution in the United States or within six calendar
months after its execution without the limits of the United States, in default of which
it shall be void as against any subsequent purchaser or mortgagee for a valuable
consideration, without notice, whose assignment has been duly recorded.

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 requirement here.

See copy of agreement: "GVL to Peer" Letter:  Page 1  Page 2

Note: The letter was actually made by Peer, so it is a Peer to GVL letter.
If GVL had refused to signed this letter, the songs would be stolen by Peer anyway per the "without the author suspecting" plan.

See eternal copyright claim by Peermusic

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. 

To make 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:
Puerto Rico Sate Department (787-723-4343) :None
Puerto Rico Supreme Court-Notary (787-723-6033) : None.
Puerto Rico Supreme Court-Notary Inspection (787-751-0457: None
New York State Department (518) 474-0050): None.

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.

The fact 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 English language. 

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).

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. 

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: At the time that Peer offered the administrative deal (a better description is "request of assignments) plaintiffs did not know about renewals (except for having heard the word) and when plaintiffs asked Peer about (in writing) Peer did not reply. Peer did not even reply to a letter (see below) that preceded the lawsuit from plaintiff attorney Benicio Sanchez Rivera.

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  (see Fuste comment) , an act that plaintiffs could do only if plaintiffs were owners,  a crucial matter.

Mexico Law at present:
"Art. 33. In the absence of any express provision, any transfer of economic rights shall be deemed to be for a term of five
years. A term of more than 15 years may only be agreed upon in exceptional cases where dictated by the nature of the work or the scale of the required investment."
Judge Fuste makes no mention of this issue.

In effect, 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 moment.

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.

A total disregard by Fuste of plaintiff's right to a proper damage award.

More about this crass error.

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.

Note: ACEMLA said in Peer vs, LAMCO (Perez Gimenez) that the SPACEM songs were in it's catalog by mistake. Some mistake!

Error: Fuste is nonchalant about an illegal appropriation.

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 ways!

Note: The size of the ACEMLA catalog was never mentioned in the Fuste opinion, a strange omission.

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 Copyright Office.

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.

See RESCISSION THEORY AND ERRORS below

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.

See RESCISSION THEORY AND ERRORS below

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.

See RESCISSION THEORY AND ERRORS below

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 RESCISSION THEORY below

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 song Ausencia 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.

Then we must erroneously conclude erroneously that plaintiffs :
- never defended themselves in the Puerto Rico courts from the estate-executor pre-emptive lawsuit, after LAMCO was notified by GVL heirs it was going to be sued for copyright infringement.
- letter of  9-18-97 to ACEMLA and Luis Raul Bernad was never made.
- complaints (two) to the PR Supreme court never occurred.
- complaint to Puerto Rico Police Justice departments for theft of songs was never made.
- letter to ombudsman regarding police behavior mas never made.
- letter to governess was never made.
- complaint to FBI never was made.
- speeches at copyright conference with ACEMLA present was never made.
- a previous (corrupted) lawsuit at Arecibo court against ACEMLA was never made.
- lawsuit (this one) was never made.
- complaint to copyright registration were never made.
- never wrote to the press.
- press releases were never made.
- went on radio to denounce LAMCO paries claims of ownership.
- never participated on the Peer press conference made to denounce ACEMLA.
- never, personally and through legal representation  denounced  LAMCO parties claims of ownership at/with Banco Popular, Sony, Sonolux, Peermusic, Disco Hit, and others.
- etc.

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 ACEMLA.

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. 

Comment:
See RESCISSION THEORY AND ERRORS below.

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.

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.

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 shows otherwise. 

Fuste Opinion Page: 39-2
Fuste text: Second Circuit explained that, “rescission has been allowed . . . in cases in which a publisher has made none of the royalty payments.”
Error: The quote means that non payment is a reason for rescission. Peer has paid 0 percent in royalties royalties to plaintiffs in the last 11 years since death of GVL. It also admitted it has not paid for decades (33-14). So they have never paid royalties in the New York statutory limit period (last 6 years). The situation is so bad that Peer has not even returned the illegally collected, when requested to do so so, royalties paid to Peer by Banco Popular for an illegal license Peer issued to Banco Popular.

Important: The non payment of royalties may have these elements which Fuste did not analyzed:
1. Non performance results in no income thus no payment.
2. There is income but it is not paid due to carelessness or fraud.

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.

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 2004). 

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.

Conclusion: 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.

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?).

Note: In another case (05-12-52 Brown v LAMCO) the same Mr. Fuste wrote:
"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)."
In the current case, Peermusic presented copyright for three songs, all published before 1953 and copyright registered by Peermusic over 17 (in 1969), 27(in 1979), and 29 (in 1981) years respectively. The problem being that Fuste accepted these registrations, prima facie, as valid because they were timely made. During trial Peermusic was asked why they took such a long time if the songs had been assigned to Peermusic in 1952. The reply was that that way Peermusic obtained a longer copyright duration (the writer believes this is a clearly illegal purpose, to trick the law).

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:
a. By its own terms, the agreement requires the signature (acceptance) of Peer. The copy of the contract presented by Peer is not signed by anyone from Peer.
b. The document cnosist of two pages (Page 1Page 2). All the terms and song names are in page 1.That page is unsigned by Guillermo Venegas. Page two (Page 2)says nothing of an agreement and it is signed by Guillermo Venegas. Being that the letter was written by Peer on a Peer typewriter,  page one could have easily been changed, and since all the parties living in 1964, that could have seen the letter then are now dead, no one can certify that page one was not changed.
There is no evidence a copy of this contract was ever given to Guillermo Venegas and Peer proferred no evidence such a copy was ever delivered. It is also suspicious that a letter that fits perfectly well in one page was written using two pages.

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:
A new and bizarre twist to this story. Recently, after the trial, it was discovered that Peermusic stole another song from GVL. The song (Llega la noche buena) was really composed by GVL but Peer stole it and registere it as having been composed by Edmundo Disdier, who coincidentally had testified in the trial saying that Peer had stolen some of his songs also. In a recent royalty report Peermusic paid the equivalent of the royalties of two records (14 cents) to Disdier although about 10,000 records were produced. The real earning of the songs (royalties plus interests) could be well over one million dollars, none of which ever was paid to GVL. An interesting thing is that the Peermusic license requests from the record producer (of the record with the alleged Disdier song) that they not report the number of records produced in their royalty statements!  This is unusually strange, bizarre, since a basic data requirement with any recording royalty statement is the number of record produced and without that number there is no way of knowing if the right royalties are being paid. After all royalties are calculated by multiplying the number of records produced by the royalty rate. It is as if Peer put a clause in the license saying "go ahead and rip me and Disdier off". This looks real bad, it is BORRACHO SENTIMENTAL all over again.

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.

Error: 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 OWNER. 

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.

So the so called songs listed on the contracts are just two of the 22 songs Peer alleged to own.
So for 20 songs Peer could not have renewal rights unless the 1964 document Peer wrote and has tried to pass as a GVL letter and written concurrently with the "without the author suspecting" letter is taken as a valid contract. The 1964 letter has no Peer signature, so it cannot be a contract between Peer and GVL. More here.

Addtionally the so call grant of renewal rights is illegal.
States copyright attorney Ivan Hoffman at http://www.ivanhoffman.com/termination.html states 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.".

Additionally, 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.

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". 

See here: AUSENCIA: A SONG NOT ASSIGNED AND ASSIGNED FOR 111 (OR 128) YEARS TO PEERMUSIC?

Error: The judge swallowing of the Peer perjurious "Peer copyright duration trick" story line as explained above.
Error: These songs never has a copyright initial term and Fuste said that the songs belonged to Peer in the initial term. See Fuste Opinion Page: 42-11.

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.

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. 

Anyway the above means that, per Fuste, only songs that were timely filed for renewal may belong to Peer. This would leaves the ownership of at least the unregistered songs as not belonging to Peer.

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. 

See Perez Gimenez at PEER INTERNATIONAL CORP. et al., v. LATIN AMERICAN MUSIC CORP., et al.,
No. 97-2875 (PG). United States District Court, D. Puerto Rico. Aug. 14, 2001.:
"and (2) plaintiffs' registration of copyrights put defendant on constructive notice of prior assignment.".
Meaning: Certain songs did not belong to LAMCO because Peer had registered them before, and therby put LAMCO on constructive notice that Peer claimed ownership of the songs and therefore assignments to LAMCO were invalid. 

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.

The Mexico Hymn (Himno Nacional Mexicano) story and World Rights:
Peermusic claims in the trial that it was the founder and the owner of Promotora Hispanoamericana de Music (PHAM), a music publisher in Mexico. While this  contradicts information found on the Internet that says that PHAM was found by the founder of Televisa, Emilio Azcarraga Vidaurreta, it seems clear that Peermusic and PHAM have collaborated as partners in publishing and stealing of rights and/or royalties. See how royalties were stolen here by Peermusic and PHAM. In the Peermusic tradition PHAM claims to own, and has sub publishers to enforce that ownership, of the MEXICO NATIONAL ANTHEM. So to play the Mexico national anthem on a Mexican diplomatic activity in the U.S.A. permission from a music publisher or BMI is needed, else the music may not be performed. The civil society of Mexico is fuming over this, the American copyright law gone crazy.

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.
This is the use given to the so called "world rights" just like the ones claimed by Peermusic.

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.

Note: 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. t  See claimed 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).

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 copyright act:
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. 

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.

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 plaintiffs royalties..

The judge: Stealing a song for many years is not as bad as singing it once.

Interesting: For the identical situation with ACEMLA, Fuste says on page 75-7that there was "probable" peformance.
Why is Peer treated differently?

Interesting: Peer contradicted itself on the issue of "is authorization" infringement?

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.

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.
Errors: 
1. Plaintiffs only learned of Peer's infringement action in October of 1997 at which time they were barred from suing Peer because of a separate lawsuit, where one of LAMCO parties (Chavez) was claming ownership of the song Genesis (and all of Venegas songs). That case was solved in mid 2000 and Peer was sued in February 2001.
2. If Fuste at no tie says how much Peer says they received from Banco Popular performance (which elsewhere he denies occurred). Logic says that Peer should have informed how much they charged Banco Popular for the performance of Genesis and that he should have questioned Plaintiff's attorney where he obtained the $3,209.40  that Fuste claims he was given. After all courts should not routinely allow the presentation of fictitious data.
3. Any license issued to BPPR by Peer was a plain violation of a territorial clause in a song assignment contract (to Mexicn publisher allegedly owned by Peermusic, Promotora Hispanoamericana de Musica - PHAM) signed by Guillermo Venegas. The judges did not mention the contract violation in his Order, so as not to award damages for a contract violation.

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
Fuste text:We, therefore, adopt Peer Defendants’ proffered calculation of $1,038.91 as Plaintiffs’ actual damages for the licensing of the BPPR license. 
Error: No proof of how much Peer charged BPPR for the performance and the subsequently produced phonorecords was presented. Also, if Peer charged BPPR only $1,038.91 (ACEMLA charged BPPR $43,000 for the same performance) in 1993 then, with interests the amount would increase to about $2,500, but Fuste wrongly used the lower amount. 

Error: This is what the law says about damages:
The copyright owner may elect “at any time before final judgment is rendered, to recover, instead of actual
damages and profits, an award of statutory damages.” See 17 U.S.C. § 504(c)(1).

But these are the facts:
Plantiffs were never asked to choose betweem actual damages or statutory damages. Fuste chose "actual damages" for them. Judge Fuste violated the law by not allowing plaintifs to elect between actual or statutory damages. If plaitiffs had elected one or the other, that should have been stated on the order by Fuste.

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 contradiction
An amazing blunder by Judge Fuste: Elsewhere Fuste says elsewhere that he awards no damages against ACEMLA for the BPPR (Banco Popular de Puerto Rico) use of the song Genesis, because allegedly, he was not convinced the song was actually used. Fuste said that "Plaintiffs have not persuasively shown that BPPR actually performed Génesis or any of GVL’s songs during the time period.". But here Fuste takes a different approach. He says Peer accepts they were paid $1,038.91 for the use of the song Genesis, meaning that both Peermusic and ACEMLA admit to being paid for the performance of the song Genesis, but, incredibly a small damage are given for the illegal Peer licensing but not for the illegal ACEMLA licensing, for which ACEMLA received about $43,000. 

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 logic
So Peer says they received $1,038.91 from BPPR for the use of the song Genesis. And, says Fuste, the damages should be calculated using that figure. But simple logic says that plaintiffs (the Venegas heir) could have earned much more than that if they, instead of Peermusic, had licensed BPPR. Perhaps BPPR would have paid $43,00 just as they paid that amount for an ilegal license from ACEMLA for the same song and the same use. Fuste, please explain what you were thinking. Certainly no one will understand.

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).

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.

See RESCISSION THEORY AND ERRORS blow.

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:
Copyright Law: Violations are felonies

Notes:
a. The phonomechanical products illegally licensed by Peermusic to Banco Popular are still being sold. Therefore the Peer infringement for distribution is an ongoing one and is current.
b. The illegal license issued to BMG in 2001 alone justified a $150,000 statutory damage award in view of Peemusic position of knowingly continuing to issue ilegal licenses, not responding to to BMG request for an explanation, not withdrawing the illegal license to BMG and the fact that BMG was still selling infringing records when the case was being heard. Interesting: Judge Fuste did not order Peermusic to rescind the illegal license it issued to BMG. No one has stopped the infringement, still ongoing.
c. The above figure of 75 to 87 per cent retention of royalties by Peermusic is a an abuse and a violation of the assignment conditions, which alloed only for a 50 percent retention. Actually it is theft.
d. The scheme by Peermusic was simple: It retained about 75 to 87 percent of the royalties it collected illegally in the U.S. and sent the rest of the royalties to its affiliate in Mexico, PHAM. There PHAM retained the rest of the royalties, so that none of the money ever reached the final destination, the composer or his heirs. This did not bother or was considered 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 permission. 
Did El Vocero license others to use the photograph? No.
Did El Vocero reduce or limit the use of the photograph by the photographer? No.
Did El Vocero fraudeulently claim ownership of the photograph? No.
Does the taking of a surfing photograph requires artistic talent? No.
Was the photograph a famous one? No.
Was the photograph's market destroyed by El Vocero actions? No. There was no market.
Was the photographer a well known photographer? No.
Photographs used: 1
Number of times photo was used: 1
Did infringement stop: yes
Award: $15,000

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:
Did Peer license others to use the song Genesis? Yes.
Did Peer  reduce or limit the use of the song by the real owners? Yes.
Did Peer  fraudeulently claim ownership of the song? Yes. 
Does the making a song like Genesis artistic talent? Yes.
Was the song a famous one? Yes.
Was the song's market destroyed by Peer actions? Yes.
Was the author of the song a well known composer? Yes.
Songs used (stolen is a better word): Many
Number of times song was used: thousands of times *
Did infringement stop: no **
Award: $5,000

* each time a license was issued that included the song for broacasting (ASCAP).
** Per has never notified any licensee to stop usage of song licensed by them. 

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.

The judge: Stealing a song for many years is not as bad as singing it once.

Fuste Opinion Page: 72-4
Fuste text: In both cases, Plaintiffs have not provided evidence that Defendant LAMCO’s license resulted in the copyrighted works’ use during the prescribed limitations period.
Error: The so called prescribed limitations period does not exists. The Copyright Act says

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:
Copyright Law: Violations are felonies
Theory: Omission (not finding infringement) made because it did not fit the story line that Defendant was not guilty of wrongdoing.

Ignored by Judge Fuste:
The disappeared ACEMLA-LAMCO escrow account money

Error: This statement is contrary to the law. See here.
Also, from simple logic, authorization by a non owner of te rights is a far worse and damaging infringement than an actual performance infringement because the only real right of the owner is the authorization and authorization is s clsim of ownership. The Fuste erred decision eliminated the infringement by Chavez and LAMCO of 197 songs which plaintiffs have copyright registered. Additional infringements by Peer were also erased by the Fuste erred interpretation of the law.

The judge: Stealing a song for many years is not as bad as singing it once.

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 period. Perjury?

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. 

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 facts:

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..

Interesting: LAMCO parties that committed these separate proven infringements:

Chavez:    206 infringements: Giving rights to ACEMLA and to LAMCO to 206 copyrighted songs.
ACEMLA: 206 infringements: licensing the 206 copyrighted songs to radio stations and Banco Popular.
LAMCO: 80 infringements: Registering 80 copyrighted songs at copyright
               office and licensing the song Genesis to Banco Popular.
LAMCO:   2 infringements: Licensing two  copyrighted songs to Sonolux and Sony
LAMCO:   1 Infringement:licensing the song Genesis to Banco Popular   .

Total infringements: 495
Awards by Fuste: 1.

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 intentional:
Minimum damages : 495 x $1400    = $693,000.00
Maximum damages: 495 x $150,00 = $74,250,000
The judge awarded $16,363.47 (money paid by Banco Popular and not defendant). This 2.4 percent of the minimum allowd by law. 

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:
Copyright Law: Violations are felonies

Ignored by Judge Fuste:
The disappeared ACEMLA-LAMCO escrow account money

The legal fees bomb for plaintiffs

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).

More on Banco Popular money split and award...

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?

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.

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?
While presented the argument that plaintiffs did not present proof that the songs that were licensed to radio stations it did not claim that the the licensed radio stations never licensed played GVL songs.

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:
Bank Fraud is a felony
Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.

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:
Copyright Law: Violations are felonies
Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.

See ACEMLA damages

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.

3.Fuste did not read the lawsuit
The lawsuit claims:

This claim for damages was never withdrawn from the lawsuit, therefore Fuste had to issue a decision on the claim.
He ignored the primary damage claim in the lawsuit.

4. Error: Fuste omits sentences or injunctive relief's that oblige

a. ACEMLA to unregister songs.
b. Peer to unregister Borracho Sentimental or remove GVL name from the song.
c. Peer to notify BMG they do not own Genesis or rescind Genesis license to BMG
d. GVL Inc. to unregister songs owned by Peer.
e. Peer to pay unpaid royalties
f. Peer to make royalty reports every 6 months.
g. Peer to modify its systems so that songs are removed from all catalogs when no longer owned by Peer.
h. That Peer cooperate (meaning communicate) with GVL children for resolving international ownership and  licensing issues (if Peer has rights to all countries, as suggested -but not decided- by Fuste) . Peermusic seems to have two ways. For renewal rights the own the rights outside the U.S. - presumably because the U.S. renewal rights reversion is not recognized by other countries and in those countries that limit assignment periods (as in Mexico) Peer claims the rights in perpetuity (e.g.: because neither U.S. nor Mexican laws are recognized). More about the so called world rights Peermusic claims.
i. Peer to remove and certify removal of songs from ASCAP and Harry Fox catalog
j. Peer to remove and certify removal songs from foreign publisher catalogs.
k. ACEMLA to remove and inform removal of songs from Harry Fox catalog
l. ACEMLA from cease and desist otherwise claiming ownership of songs (recently still on web page).

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:
Copyright Law: Violations are felonies

Ignored by Judge Fuste:
Bank Fraud is a felony
The Peer license to Banco Popular was fraudulent because Peer had no right to issue the license, as Fuste himself determined. Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.

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 permission. 
Did El Vocero license others to use the phoyograph? No.
Did El Vocero reduce or limit the use of the photograph by the photographer? No.
Did El Vocero fraudeulently claim ownership of the photograph? No.
Does the taking of a surfing photograph requires artistic talent? No.
Was the photograph a famous one? No.
Was the photograph's market destroyed by El Vocer actions? No. There was no market.
Was the photographer a well known photographer? No.
Photographs used: 1
Award: $15,000

Now compare these answers to these questiony would be for the actions of LAMCO-ACEMLA:
Did LAMCO-ACEMLA license others to use the song Genesis? Yes.
Did LAMCO-ACEMLA reduce or limit the use of the song by the real owners? Yes.
Did LAMCO-ACEMLA fraudeulently claim ownership of the song? Yes.
Does the making a song like Genesis artistic talent? Yes.
Was the song a famous one? Yes.
Was the song's market destroyed by LAMCO-ACEMLA actions? Yes.
Was the author of the song a well known composer? Yes.
Songs used (stolen is a better word): Over 500
Did infringement stop: no *
Award: $16,363

* 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. 

Theory: Omission made because it did not fit the story line that Defendant was not guilty of wrongdoing.

Ignored by Judge Fuste:
Copyright Law: Violations are felonies

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.

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.

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 equity?

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.

The judge: Stealing a song for many years is not as bad as singing it once.

Plaintiffs had no right to information / Hidden discovery documents 
The Peer lawyer statement that Peer did not have to give any information to plaintiffs is a breach of contract because the beneficial owner has a natural right to information.

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:
Because of defendant's Morgan Stanley & Co. failure to produce discovery documents, Palm Beach County (Florida) Circuit Judge Elizabeth T. Maass issued a summary judgment against defendants and in favor of plaintiff Ronald Perelman in his multibillion-dollar lawsuit. Mr. Perelmen was then awarded anput 1.5 billion dollars by a jury.

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 lawyer, Benicio Sanchez Rivera that provoked the filing of this lawsuit.
ACEMLA-LAMCO DISCOVERY
This publisher also committed massive document hiding. None of the documents they presented as required by the plaintiffs discovery request had any information about royalty payments for the music of GVL, nothing about the return of royalties to Sonolux, nothing about the performance of GVL songs, no copy of any license that covered GVL songs, receipts or copy of music materials received from executrix Chavez and so on. 

Note: In the Peer vs. ACEMLA lawsuit it was decided by Judge Perez Gomenez that merely having songs in a catalog was infringement.

The judge: Stealing a song for many years is not as bad as singing it once.

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.