US appeals court tells ISP that safe harbor comes with obligations

COPYRIGHT Recorded music, music publishing, internet   A US appellate court has reversed a $25 million verdict against the US Internet Service Provider Cox Communications in what might be seen as a defeat for record label BMG, which had sought to hold Cox liable for copyright infringement for its subscribers who were sharing pirated files online. But looking at the judgment, and despite what looks like a set back for BMG Rights Management, it can be argued that its actually a win in the battle against piracy The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returns the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users’ infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O’Grady, incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. “The formulation ‘should have known’…

YouTube adopts ISNI to help allocate payments
Copyright , Internet , Music Publishing / February 2018

COPYRIGHT Internet, recorded music, music publishing   YouTube is to begin issuing International Standard Name Identifier  (ISNI) numbers to creators. The platform has become a registration agency which means it will now start requesting and issuing ISNI codes from and to any creators who publish content, including musicians and songwriters in a move which should help with attribution and royalty payments. ISNI numbers can cover “researchers, inventors, writers, artists, visual creators, performers, producers, publishers, aggregators, and more”. YouTube will use the ISNI code to identify musicians and songwriters on its platform, allocating numbers to those who don’t already have one. It also plans to share those codes with any one creator’s business partners, such as record labels and music publishers, to encourage wider adoption of the identifier system. YouTube’s Technical Program Manager FX Nuttall said “By adopting ISNI, artists, songwriters and other creators will be unambiguously identified, enabling better visibility and tracking on YouTube. Bringing the ISNI open standard to music opens the door to more accurate credit for creators, discovery for fans, and transparency for the industry”. The ISNI International Agency’s Executive Director Tim Devenport said: “We’re delighted to partner with YouTube on such an ambitious effort. Many organisations active in the…

Are YouTube gagging artists in the copyright debate?
Censorship , Copyright , Internet / February 2018

COPYRIGHT / CENSORSHIP Internet   Hot on the heels of a report by Bloomberg that YouTube had asked musicians to agree not to disparage the streaming-video service in exchange for promotional support as a way to silencing criticism by artists, the Content Creators Coalition (C3) has urged Congress to investigate the so called  ‘non-disparagement agreements’. YouTube meanwhile is trying to stem the damage, and has played down reports that it includes non-disparagement agreements in contracts with some artists which would prevent those musicians from criticising the Google platform – although the company admits that a small number of current agreements tied to original content and/or promotional work may include “general language around conduct”. US artist-led lobbying group C3 has called on the Judiciary Committees to investigate the non-disparagement clauses in partnership agreements. In its report, Bloomberg conceded that such terms “are common in business”, but noted that it seemed only YouTube had extended the the music streaming marketplace. In a letter to the chairs of the Congressional Judiciary Committees in both the Senate and the House Of Representatives, C3 argues these clauses are “clearly aimed at thwarting the Congressional review of the Digital Millennium Copyright Act’s [provisions for] ‘safe harbor’ as well as the…

No safe harbour for Google in Oz
Copyright , Internet / January 2018

COPYRIGHT Internet   Google and perhaps more importantly YouTube will be excluded from new proposed extended safe harbour provisions which form part of the copyright law reforms in Australia. Australia had a very narrow definition of safe harbour and currently these only apply to commercial Internet service providers. After extensive lobbying by the technology sector in Australia, who of course want wider safe harbour provisions, the Australian media and music industries hit out at proposed reforms pointing out that current safe harbour systems that operate in America and the European Union under review. And the Austrlian government seems to have listened, and the new beneficiaries of the safe harbour under the latest proposals are libraries and educational or cultural institutions. Australia’s Communications Minister Mitch Fifield said that safe harbour protection would initially be extended to organisations that “provide beneficial services to all Australians and who are working collaboratively with copyright owners to address infringement”. The Government now plans further consultation on extending the safe harbour to the technology sector and in particular the likes of Google and Facebook but Fifiled added they would be “mindful of the need to ensure the rights of creators are properly protected” adding “Australia’s copyright industries make a significant…

Spotify and Deezer call for a level European playing field with the American tech giants
Competition , Internet / January 2018

COMPETITON Internet   Spotify and Deezer have urged European legislators to ensure that the globally dominant giant US technology companies (primarily Apple, Amazon and Google) don’t abuse their position as gatekeepers to digital consumers, not least as all three tech giants make and operate devices, control transaction platforms and content services, and many feel they utilise the first two to promote the latter – and that might be unfair to streaming platforms like Spotify and Deezer – big in their sector, but dwarfed by the likes of Google.  The Financial Times reported that Spotify chief Daniel Ek and Deezer CEO Hans-Holger Albrecht  have now sent a letter to European Commission President Jean-Claude Juncker, urging the European Union to ensure “a level playing field” which would prevent American tech giants from “regularly abusing their advantaged position”. The letter, also signed the gaming sector, has been sent the EC because the EC is actively considering new rules for how big tech companies work with smaller firms whose digital tools and services are sold and/or distributed via the former’s platforms. Both Spotify and Deezer put their names to a similar letter back in May. Spotify and Deezer are upset that Apple takes a 30 percent cut…

Two big decisions examine web blocking in the USA
Copyright , Internet / December 2017

COPYRIGHT Internet   In the space of under a week there have been two big cases in the USA looking at web blocking – and with differing results.  First off, a federal judge in California has issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list websites for Datalink on its American search engine. The Canadian Supreme Court (Google Inc v Equustek Solutions Inc, 2017 SCC 34) affirmed the decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s website(s) worldwide. The music industry trade body Music Canada welcomed the judgement saying it was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”.   The web giant responded by saying the ruling conflics with the right to a freedom of expression  contained within the First Amendment of the US Constitution, and that the Canadian Supreme Court had no right meddling with the American Constitution. Google’s argued “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we…

YouTube-MP3 agrees to shutter
Copyright , Internet , Music Publishing / October 2017

COPYRIGHT Internet, recorded music   YouTube-mp3 has agreed to shut down and hand its domain(s) over to the Recording Industry Association of America (RIAA). With millions of visitors each day, the ‘steam ripping’ YouTube-MP3.org was one of the most visited websites on the Internet.  Last year, the Germany-based YouTube to MP3 converter website was sued by the RIAA for copyright infringing their rights.  It had also been sued by the record industry in its home country in 2013. Now in an agreed settlement, YouTube-MP3 will shut down indefinitely. The BPI (British Recorded Music Industry) and the IFPI (International Federation of the Phonographic Industry) were also parties to the action, which accused the site of not only copyright infringement, but also circumventing YouTube’s copy protection mechanism, and violating the USA’s Digital Millennium Copyright Act. A report earlier this year by the UK’s Intellectual Property Office and PRS For Music said that stream ripping was now the “most prevalent and fastest growing form of music piracy”. According to an IFPI  report published last year, the site has been reportedly attracting more than 60 million monthly visitors. In the same report, it was mentioned that 50 percent of the 16 to 24-year-old survey respondents used stream ripping services…

Grande face new US claim in wake of Cox ruling
Copyright , Internet / September 2017

COPYRIGHT Internet, recorded music   US internet service provider Grande Communications is fighting back against the action iy faces which was commenced by the Recording Industry Association of America (RIAA).   Earlier this year, the RIAA sued the Texas internet service provider claiming that “Despite their knowledge of repeat infringements, defendants have permitted repeat infringers to use the Grande service to continue to infringe plaintiffs’ copyrights without consequence”.   The move comes in the wake of the recent ruling in the dispute between music rights firm BMG and internet service provider Cox Communications, in which the court found that internet service provider Cox was liable for the copyright infringement of its customers.  The judge held this because Cox Communications operated a (deliberately) poor system for dealing with copyright infringing customers, Cox could not rely on the safe harbour defence in US law.   Now the RIAA is looking to have Grande Communications held liable for the copyright infringement of its customers. The RIAA plans to do this on the basis that Grande Communications isn’t doing enough to deal with said infringers, and therefore will not be able to rely on the safe harbour defence. In 2014 Cox was accused of repeatedly refusing “to…

The European Copyright Directive, safe harbour and the value gap found in the middle of it
Copyright , Internet / August 2017

COPYRIGHT Internet, digital   The EU’s E-Commerce Directive created the ‘safe harbour’ to protect Information Society Service Provides (ISP) where, subject to certain requirements, they unknowingly provided copyright-infringing material.   Take the YouTube example; due to the scale and amount of content that is uploaded to YouTube on a daily basis, it is almost an impossible task to monitor all content for copyright-infringing material. Therefore, and providing YouTube is doing all that it can in actively monitoring for copyright infringing content, it is protected by the ‘safe harbour’ rules. These rules mean that YouTube cannot be found to be liable for the infringement. However, with all rules there is an exception, the general exception for the safe harbour rules mean that if a ISP is put on notice that it is hosting infringing material it must act efficiently and expeditiously to remove the content, if this does not happen the ISP may be found to be liable.   It has been argued by both the music publishing and recorded music sectors that sites such as YouTube exploit the safe harbour rules. It is said that YouTube uses the safe harbour rules to effectively pay (much) lower royalties to copyright holders and this…

Stream-ripping tops music piracy chart
Copyright , Internet / August 2017

COPYRIGHT Internet, digital   A study carried out by PRS for Music and the Intellectual Property Office (IPO), has found that stream-ripping is now the most prevalent and fastest growing form of music piracy in the UK, with nearly 70% of music-specific infringement dominated by the illegal online activity.   Research revealed that the use of stream-ripping websites, which allow users to illegally create permanent offline copies of audio or video streams from sites such as YouTube, increased by 141.3% between 2014 and 2016, overwhelmingly overshadowing all other illegal music services.   In 2016, PRS for Music and the IPO jointly commissioned two separate studies by INCOPRO and Kantar Media to better understand stream-ripping and its impact on the UK market and online consumer behaviour. Over 9,100 consumers participated.    Stream-ripping can be carried out via apps, websites, plug-ins or specially developed software on any online audio and video content to create a permanent audio-only copy of the music, without the rightsholders’ permission. Once saved, the track/file can be listened to offline on any digital device such as smartphones and tablets.   YouTube was found to be the most popular source of content for these sites, used by 75 of…

The Canadian Supreme Court brings music to the ears of the music industry
Copyright , Internet / August 2017

COPYRIGHT Internet, digital   The Canadian Supreme Court has brought music to the ears of the music industry, although it’s not a music case!  It’s no secret, Google regularly links to content that is an infringement of copyright. It is also no secret that Google de-lists specific web pages that link through to copyright infringing content, but does not actually de-list the whole website.  Now the Supreme Court has ruled that the internet giant Can be forced to remove results worldwide, although the decision criticised by civil liberties groups who argue the judgment sets a precedent for censorship on the internet. The landmark ruling from Canada’s Supreme Court, which will undoubtedly have a major impact in the music industry, comes in the case of Google v Equustek. The music industry has been complaining, for some time that whilst Google does remove individual web pages, it will not remove the whole website. And indeed it’s always a game of ‘whack a mole’ – as soon the infringing content is removed, it then just pops up again. And it should be noted, safe harbour obligations provide that Google should de-list the web page, but there is no obligation to de-list the whole website….

Custodial sentence appropriate for sustained online infringement

COPYRIGHT Recorded Music, Music Publishing, Internet     In an interesting decision, the Court of Appeal in London has upheld a custodial sentence imposed on Wayne Evans by HHJ Trevor Jones at the Crown Court in Liverpool for two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the Copyright Designs & Patents Act 1988 and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. Evans operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites, but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called “torrent” websites which permitted such downloading. The appellant himself had three websites which he administered. They were hosted through a proxy server, a computer system or application which facilitated access to material on the internet and which also provided a degree of anonymity to those who were supplying or accessing it and which bypassed other sites which might have been blocked by UK internet service providers. The three website…

The US Supreme Court has declines Vimeo appeal

COPYRIGHT Recorded music, internet     The US Supreme Court has declined to hear a final appeal in Capitol Records’ legal battle with video-sharing site Vimeo for hosting unauthorised recordings from The Beatles, Elvis Presley and other classic artists. The court  has left in place a federal appeals court ruling which said websites are protected from liability even for older music recorded before 1972 under the DCMA’s ‘safe harbor’ provisions.  Capital Records and other music companies had sued Vimeo for violating copyright laws for videos uploaded by users of the site and federal judge ruled a federal “safe harbour” law did not cover pre-1972 audio recordings. which are generally protected by state law. But a New York federal appeals court overturned that ruling, saying service providers would incur heavy costs to monitor every posting or risk “crushing liabilities” under state law. The Second Circuit Court of Appeals ruled that exempting older recordings from the safe harbor principle would “defeat the very purpose Congress sought to achieve in passing [it]”. The appellate court then refused to reconsider the case in August, resulting in the recorded music industry taking the matter to the US Supreme Court last December. The Supreme Court has now declined to hear the case, meaning…

Swedish appellate court allows web blocking
Copyright , Internet / March 2017

COPYRIGHT Internet   The Swedish Court Of Appeal has overturned the ruling in the District Court Of Stockholm in 2015 which had dismissed an application that would have forced internet service providers to block The Pirate Bay and other platforms linked to music and other piracy – a move opposed Swedish ISP Bredbandsbolaget   The Patent And Market Court Of Appeal has now ruled in favour of music and movie companies, ordering Bredbandsbolaget to implement web-blocking of both The Pirate Bay and another piracy site called Swefilmer. The court confirmed that their judgement was in part influenced by the web-block injunctions that have been ordered elsewhere in the European Union. Torrentfreak reports that judge Christine Lager said in a statement: “In today’s judgment, the Patent And Market Court held that right holders such as film and music companies can obtain a court order in Sweden against an ISP, which forces the ISP to take measures to prevent copyright infringement committed by others on the internet. The decision is based in EU law and Swedish Law should be interpreted in the light of EU law. Similar injunctions have already been announced, such as in Denmark, Finland, France and the UK, but the verdict today is…

Can ReDigi re-sell its self to the Court of Appeal?

COPYRIGHT Recorded music, internet It appears that ReDigi is making a comeback with some high-profile support. Back in 2013 we were listening to the case of Capitol Records, LLC v ReDigi Inc. The case asked if the digital music purchases were capable and eligible for resale under the first sale doctrine.  The doctrine of first sale is (of course!) the legal concept that has been enshrined into US and other copyright laws. It provides that purchasers of copyrighted material are afforded the right to re- sell the material. In the UK we like to explain it to be that once the copyrighted or trade marked product is sold, the proprietor of the copyright or trade mark has exhausted his/ or her rights and cannot use the rights to stop the product being re-sold.  In ReDigi the issue was that of the purchasers of digital music being afforded the right to re-sell the music.  Capitol Records were not fans of this, they said that it was a infringement of copyright. They argued that the infringement came about when  copies of the music files were made during the transmission from users of ReDigi to the ReDigi servers and then again in transactions between users. …

T Bone Burnett takes aim at DCMA safe harbours
Copyright , Internet / March 2017

COPYRIGHT Internet   Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of their customers, giving the technology companies the benefit of ‘safe harbour’ protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.” But is that balance right?    Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office’s review of Digital Millennium Act ‘safe harbour’ provisions in the USA, saying in a video that whilst the law that was supposed to “balance the internet’s openness with creators’ ability to earn a living wage from their work  ….. [T]hose safe harbours have failed”. “The problems are familiar”, he adds. “[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of ‘notice and takedown’ to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles…

Major labels take aim at mixtape app

COPYRIGHT Recorded music, internet   The digital platform that specialising in the distribution of unofficial hip hop mixtapes is in the sights of the US major labels, with the Recording Industry Association Of America accusing Spinrilla and its founder Jeffery Dylan Copeland of rampant copyright infringement. The record labels have, until now, seemingly turned a blind eye to smaller underground labels who release unlicensed mixtapes, which often include multiple unauthorised samples from their catalogues, but Spinrilla has attracted their attention and the Recording Industry Association of America’s complaint reads: “Through the Spinrilla website and apps, users with an artist account can upload content that any other user can then download or stream on demand for free, an unlimited number of times – although the site does have DCMA takedown protocols.  A substantial amount of content uploaded to the Spinrilla website and apps consists of popular sound recordings whose copyrights are owned by plaintiffs”.   Spinrilla is indeed a business – and has a nominally priced premium version available, and the Spinrilla app has appeared in a number of recommended music service lists recently alongside licensed platforms like Spotify, and licensed sites such as MixCloud and SoundCloud.  In a statement, the…

PRS led investigation results in prison term for chart pirate
Copyright , Internet , Music Publishing / January 2017

COPYRIGHT Internet, recorded music   A Liverpool man has been sentenced to a 12 month prison sentence after pleading guilty to illegally distributing UK chart hits online, which PRS for Music says potentially cost the music industry “millions of pounds and depriving the creators of the content fair remuneration for their work”. The sentence was the result of a joint investigation between PRS for Music and the City of London’s Police Intellectual Property Crime Unit (PIPCU) and is the first custodial sentence to arise from the two organisations working together.   In October Wayne Evans pleaded guilty to two counts of distributing an article infringing copyright and one of possessing or controlling an article for use in fraud – Evans had been illegally uploading the UK’s Top 40 singles to various torrent sites as they were announced each week by the Official Charts Company. The 39-year-old was also distributing tracks through his own website, including ‘acappella’ music to be used for DJ-ing and remixing. He admitted using his computers and the website deejayportal.com for use in or in connection with fraud. Before sentencing Judge Alan Conrad, QC, agreed that a pre-sentence report was a necessity,  and said the sentencing judge would require assistance,…

Prince’s estate takes on TIDAL

COPYRIGHT Recorded music, internet     A court battle over the streaming rights to Prince’s back catalogue is looming after the late singer’s estate filed a claim in the US courts against Jay Z’s Roc Nation and the TIDAL streaming service. The action on behalf Prince’s estate, fronted by NPG Records, claims that Roc Nation and TIDAL is streaming more than a dozen of the star’s albums without permission.  The lawsuit, filed in the U.S. District of Minnesota court also names NPG Publishing as a plaintiff.   The law suit claims damages, and demands that unlicensed material be taken down: “Roc Nation to account for and pay to Plaintiffs their actual damages in the form of Roc Nation’s profits and Plaintiffs’ damages, or… statutory damages up to the maximum amount allowed for wilful infringement of copyright”. Prince removed most of his back catalogue from streaming sites including Spotify, Google Play and Apple Music in July 2015. A month later, he released a new album, HitNRun: Phase One exclusively on TIDAL. TIDAL claims it has licences, “both oral and written”, for a wide range of material and “the right to exclusively stream [Prince’s] entire catalogue of music, with certain limited exceptions”. in a statement at the time if…

The sound of music: YouTube and GEMA finally settle
Copyright , Internet , Music Publishing / December 2016

COPYRIGHT Music publishing, internet     It’s been one of the biggest stand-offs in digital music history – but now it appears that YouTube and German collection society GEMA have finally reached a licensing agreement – meaning German consumers can now finally (legally) use YouTube to stream music videos   Someone must have blinked, although the blank screens in one of the world’s major economies clearly helped neither side. Now the platform and the collection society say they had reached a new deal for compensating music publishers (and songwriter artists), resolving a dispute that began in 2009. The resolution comes against a backdrop of European officials reviewing the region’s copyright rules – potentially giving more power to record labels, publishers and other content producers over the likes of Google, which owns YouTube, and Facebook. The labels, music publishers and more recently recording artistes have accused YouTube of grossly under paying for using sound recordings and music. YouTube declared the settlement as a victory for musicians, saying they could reach “new and existing fans in Germany,” while GEMA said its 70,000 members would receive “fair remuneration” when their works were played over the platform. But neither side published the details of the agreement….

US appeals court revisits ‘safe harbor’
Copyright , Internet , Music Publishing / November 2016

COPYRIGHT Internet, record music, music publishing   A U.S. appeals court has agreed that former members of the EMI Group can pursue additional copyright infringement claims in a long-running lawsuit over defunct online music storage firm MP3tunes. In rejecting an appeal by MP3tunes founder Michael Robertson, who was ordered to pay $12.2 million after a federal jury in 2014 found him liable for copyright infringement, the 2nd U.S. Circuit Court of Appeals in New York revisited the ruling by  U.S. District Judge William Pauley that MP3tunes was eligible for safe harbor protection under the Digital Millennium Copyright Act by meeting a requirement that service providers adopt and implement a policy for terminating repeat infringers: Pauley had narrowly defined “repeat infringer” to cover only those users who upload infringing content, rather than ones who downloaded songs for personal entertainment. “In the context of this case, all it takes to be a ‘repeat infringer’ is to repeatedly upload or download copyrighted material for personal use,” U.S. Circuit Judge Raymond Lohier wrote saying that the trial judge’s view that only “blatant infringers” need to be subject to banning doesn’t match with the text, structure or legislative history of the DMCA. Whilst MP3Tunes terminated 153…

SFX faces two decisions in the bankruptcy court
Competition , Contract , Internet , Live Events / October 2016

CONTRACT / COMPETITION Live events sector, online   A US bankruptcy judge has allowed Viagogo to proceed with a legal action against SFX Entertainment. modifying the “automatic stay” applied to SFX. Under Chapter 11 of the United States Bankruptcy Code, creditors are usually barred from collecting debts from the debtor. and allowing the secondary ticketing platform to “assert and prosecute any and all counterclaims” against SFX. Having reviewed the request, Judge Mary F Walrath determined “sufficient cause exists to approve the motion”.  Viagogo is seeking “in excess” of US$1.6 million from SFX, which went into administration on 1 February, for allegedly failing to adhere to the terms if a five-year, $75m sponsorship agreement signed by the two companies in 2014. The deal granted Viagogo exclusive ticket resale rights some 50 SFX-promoted events and SFX agreed to “deliver exclusive marketing and ticketing rights with respect to a number of designated ‘major’ SFX events.   In other SFX news, an Italian EDM record label is requesting a probe into how third parties might be artificially influencing SFX’s digital music charts. Art & Music Recording (AMR) has requested the Delaware judge overseeing SFX’s Chapter 11 bankruptcy case order the company to reveal what it knows about…

What do the European Commission’s moves on copyright really mean for the music industry?
Copyright , Internet / September 2016

COPYRIGHT Online   In the context of its Digital Single Market Strategy, the EU Commission is currently engaged in a discussion of whether the liability principles and rules contained in the E-Commerce Directive should be amended – and the focus of commentators has shifted to how hosting providers have been increasingly using ‘safe harbour immunity’ in Article 14 – an alleged abuse which has led to a distortion of the online marketplace, and the resulting ‘value gap’ suggested by some right holders. A proposal has been recently advanced in France advocating the removal – at a European Union level – of the safe harbour protection for hosting providers that give access to copyright works,  to enable the effective enforcement of copyright and related rights in the digital environment, particularly on platforms that disseminate protected content. In particular, the French document considers that the Court of Justice of the European Union (CJEU) has erred in its interpretation and application of relevant principles of online intermediary liability.   Statewatch has now leaked a draft version of the Commission Staff Working Document – Impact Assessment on the modernisation of EU copyright rules and this appears to suggest some of the areas where changes might made: In relation…

Judgment against Cox opens up ISP liability in the USA
Copyright , Internet , Music Publishing / September 2016

COPYRIGHT Recorded music, internet   Cox Communications has been ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company BMG by a federal judge. The ruling follows a jury decision which found Cox liable for illegal movie and music downloads by its customers.   The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement – a ruling which may have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing – which Cox then failed to act on.  In a statement, Rightscorp said: “For nearly five years, Rightscorp has warned US internet service providers (ISPs) that they risk of incurring huge liabilities if they fail to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe copyrights.” adding “Over that time, many ISPs have taken the position that it…

IsoHunt founder finally settles with the Canadian content industries
Copyright , Internet , Music Publishing / August 2016

COPYRIGHT Internet, film, recorded music   One of Canada’s longest-running copyright infringement lawsuits has ended with a judge in Vancouver announcing a $65 million settlement in the IsoHunt case that dates back to 2008. According to various reports, Gary Fung, founder of isoHunt Web Technologies Inc, which was found to have infringed music and film companies’ copyrights in both Canada and the USA , shared music files via isoHunt, a network of BitTorrent file sharing sites.  In the US, a federal district court found isoHunt liable for copyright infringement against the Motion Picture Association of America for sharing illegally downloaded movies. In 2010, more than 20 Canadian and international music companies sued isoHunt and Fung for “massive copyright infringement. In 2013, the US federal court of appeals upheld the 2009 ruling, isoHunt and Fung entered into an agreement to stop all international operations and agreed to a $110 million settlement. The British Columbia Supreme Court has now ruled against isoHunt and Fung, ordering him to pay $55 million CAD in damages for copyright infringement and an additional $10 million (CAD) for punitive damages, and ordering Fung to agree to never again be involved in a service that provides stolen or pirated…

Google don’t need to filter ‘torrent’ searches in France
Copyright , Internet / August 2016

COPYRIGHT Internet   The High Court in Paris has held that search engines Google and Bing are not required to automatically filter “torrent” related searches to prevent piracy. The court said that the proposed filter, requested by the local music industry group SNEP, would be too broad, ineffective, and target legitimate content as well.   SNEP had argued that, when paired with the names of three artists it represented, “torrent” related searches predominantly link to pirated content. To counter this, they demanded a filter that would block results for these searches for the keyword “torrent,” as well as websites that include the same word in their domain name, basing the request on Article L336-2 of France’s intellectual property code, which states that “all appropriate measures” are permitted to prevent copyright infringement. Microsoft had warned that the broad filtering system requested by the music group would be imprecise, disproportionate and inefficient. The Court had to balance the rights of content owners to implement anti-piracy measures against the rights of individual Internet users including  freedom of expression and communication and the court found that “SNEP’s requests are general, and pertain not to a specific site but to all websites accessible through the stated methods, without consideration…

Virgin told to implement three strikes in Ireland – but who pays?
Copyright , Internet / August 2016

COPYRIGHT Internet     The Court of Appeal in Ireland has ruled that Ireland’s second largest internet service provider, Virgin Media, must take steps to deal with illegal music downloading, upholding a March 2015 High Court decision that required UPC (since taken over by Virgin) to set up a ‘three strikes’ regime whereby infringers of copyright are identified, warned and their service withdrawn if they do not desist. Subject to a minor variation, the High Court order in favour of Sony, Warner and Universal companies should apply, Mr Justice Gerard Hogan said on behalf of the three-judge appeal court. That variation is that a five year review of the regime would not apply.   Virgin would be entitled to apply to the court again if there are fundamental changes in circumstances or other significant changes which may merit a change in the order, or even its discharge, the court said. UPC/Virgin had appealed the High Court decision arguing, among other reasons, that because it (UPC) was not the infringer of the copyrighted music, the court had no jurisdiction to make the orders it had. For the appeals court, Mr Justice Hogan said the order was necessary and it satisfied the requirements of a 2001 EU…

Apple suggests new royalty rate for streaming music

COPYRIGHT Music publishing, internet, artistes     Apple has filed a new proposal with the US Copyright Royalty Board which it says it hopes will “simplify” songwriting royalties in the States by 2018. Apple has suggested that all on-demand streaming services should pay songwriters a statutory rate of 9.1 Cents every 100 plays – a per-stream rate of $0.00091, or $910 per million streams, or $910,000 for a billion – thought to be more that Spotify’s ‘free’ ad supported platform would generate.   And in Australia, commercial radio broadcasters will have to pay a licence fee for songs streamed over the internet after a Copyright Tribunal ruling. The long-running legal battle between the Phonographic Performance Company of Australia (PPCA) and Commercial Radio Australia (CRA) finally reached a conclusion after nearly seven years. CRA had previously argued that as it already pays a licence fee for music for radio and shouldn’t have to pay again for making  that broadcast available over the internet. Now the Copyright Tribunal has finalised the terms of the scheme where commercial radio broadcasters will pay simulcast licence fees for songs streamed over the internet.   And Screen Producers Australia (SPA) has reached agreement  with performers for the broadcasting, repeats and…

Spotify launch anti-trust claims against Apple
Competition , Internet / August 2016

COMPETITION Internet   Music streaming platform Spotify has accused Apple of using its control of the iOS platform and App Store to keep the latest Spotify app out of the iOS ecosystem, in a move that favours its own Apple Music service. Spotify said that Apple rejected a new version of the firm’s app from the App Store, citing various technicalities. Apple has insisted that Spotify’s app did not conform to “business model rules”, and demanded that Spotify use Apple’s own billing system “to acquire new customers and sell subscriptions”. Companies such as Spotify have sought to sidestep Apple’s App Store cut by encouraging consumers to sign up for their services online. Apple forbids developers from promoting alternative payment methods within their apps. This is a requirement of all app developers who wish to sell apps on Apple’s App Store. iOS is a closed platform, and so Spotify say there is no choice but to comply. Apple takes a 30 per cent fee for the privilege, which Spotify is forced to pass on to customers. Spotify claimed that this makes its service appear uncompetitive. But Apple General Counsel Bruce Sewell countered that the company deserves a cut of transactions in the App Store for its…

Michigan court finds that a free stream is not a ‘rent, lend or sale’
Copyright , Internet , Music Publishing / August 2016

COPYRIGHT / PRIVACY Internet, recorded music   The Michigan Court of Appeals has confirmed that music service Pandora didn’t violate a 20 year old Michigan privacy law by allegedly disclosing information about users of its free service to Facebook. in a unanimous decision the court said that the state’s Video Privacy Protection Act doesn’t apply when companies stream music to users for free. That law prohibits companies that rent, lend or sell music (as well as books and videos) from disclosing customers’ identities without their consent, upholding U.S. District Court Judge Saundra Brown in Oakland, California who had dismissed the lawsuit, ruling that Michigan’s law doesn’t apply when companies stream tracks. She said the law only applies to companies that lend, rent or sell material. Michigan resident Peter Deacon had begun the action against Pandora, a potential class-action, saying that Pandora wrongly disclosed his music-listening history to all of his Facebook contacts that also used Pandora. In 2010 Pandora partnered with Facebook for the first version of its “instant personalization” programme which automatically shared Facebook users data with outside companies. People could opt out, but at launch the feature operated by default. Having lost at first instance, Deacon appealed to the 9th Circuit Court…

IFPI Global Music Report 2016
Copyright , Internet / May 2016

COPYRIGHT Recorded music, internet     The record labels’ international trade body, the IFPI, has published its Global Music Report for 2016 with headline news that global recorded music revenues are up 3.2% as digital revenues overtake physical for the frst time. The report highlights: –       Digital revenues contribute 45 per cent of industry revenues, overtaking physical’s 39 per cent share –       Streaming revenues up 45.2 per cent, helping to drive 3.2 per cent global growth –       Music consumption is exploding globally, but the “value gap” is the biggest brake on sustainable revenue growth for artists and record labels Digital revenues now account for 45 per cent of total revenues, compared to 39 per cent for physical sales. IFPI’s Global Music Report 2016 also reported a 10.2 per cent rise in digital revenues to US$ 6.7 billion, with a 45.2 per cent increase in streaming revenue more than offsetting the decline in downloads and physical formats. Total industry revenues grew 3.2 per cent to US$ 15.0 billion, leading to the industry’s first significant year-on-year growth in nearly two decades.  Digital revenues now account for more than half the recorded music market…

Artistes call for major reforms of take down policies and the ‘largely useless’ DMCA
Artists , Copyright , Internet / May 2016

COPYRIGHT Internet, artistes     Some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) are calling on Congress to reform existing US copyright law saying that the Digital Millenium Copyright Act (DMCA) is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. The DCMA was signed into law by President Bill Clinton in 1998 and aimed to ready copyright law for the digital age. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks are just some of music’s biggest names want to make it harder to pirate music online. The musicians are asking lawmakers to make “drastic reforms” to the Act. “Artists spanning a variety of genres and generations are submitting comments to the federal government’s U.S. Copyright Office …. demanding reforms to the antiquated DMCA which forces creators to police the entire Internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites,” says a statement issued by the Recording Industry Association of America: Recording artistes including deadmau5, Tony Bennett, Pearl Jam and Bette Midler have filed petitions to the U.S. Copyright Office detailing their struggles…

Jay Z seeks rebate over TIDAL sale
Contract , Internet / May 2016

COMMERCIAL / CONTRACT Internet, streaming   Jay Z, who purchased  TIDAL from Nordic parent company Aspiro for 464m Swedish Krona ($57m) in March last year, is taking action against the vendors for over estimating the number of subscribers at the time of sale. Whist TIDAL said “We are excited that one year after TIDAL launched, we have surpassed 3 million subscribers globally” they added “It became clear after taking control of TIDAL and conducting our own audit that the total number of subscribers was actually well below the 540,000 reported to us by the prior owners.” According to Swedish news service BreakIt – quoting an article in Norwegian title Dagens Næringsliv (“Today’s Business”) – Aspiro’s former major shareholders, including Schibsted and Verdane, have been contacted by TIDAL. TIDAL now says “As a result, we have now served legal notice to parties involved in the sale. While we cannot share further comment during active legal proceedings, we’re proud of our success and remain focused on delivering the best experience for artists and fans.“ It is thought Jay Z and his finance vehicle, Project Panther Bidco will try and to claim back a sum in the ‘region of 100 million Krona’.   Schibsted…

EU digital chief takes aim at YouTube
Competition , Internet / May 2016

COMPETITION Internet     The head of the EC’s digital single market, Andrus Ansip, has spoken out over what he perceives as unfair competition in music streaming. He said that YouTube’s comparatively small payments to artists gave it an unfair advantage over rivals such as Spotify, the Swedish streaming service.   Ansip said “this is not only about rights owners and creators and their remuneration — it is also about a level playing field between different service providers,” said the former prime minister of Estonia. “Platforms based on subscriptions are remunerating those authors; others service providers do not. How can they compete?” Record labels have long complained that YouTube — which has become the world’s most popular music service — pays too little to use their songs.   And Artistes have also been vocal in their complaints: “YouTube is paying out about a sixth of what Spotify and Apple pay artists,” said Nikki Sixx adding: “[YouTube is] hiding behind this safe-harbor loophole. That is allowing them the freedom to not take care of artists.” Metallica manager Peter Mensch said: “YouTube? They’re the devil. If someone doesn’t do something about YouTube, we’re screwed. It’s over. Turn off the lights.” YouTube has publicly blamed non-disclosure…

CMA provisionally decides to release PRS for Music from 1997 undertakings

COMPETITION Music publishing, broadcasting, internet     The Competition and Markets Authority (CMA) has published its provisional decision in its review of undertakings given by PRS to the Monopolies and Mergers Commission (MMC) in 1997.  The CMA has provisionally decided to release the undertakings. The PRS is one of the two main collecting societies for music in the UK. It licenses musical works and administers the royalties when such works are played in public or broadcast, for example on the radio or television.   The group of independent CMA panel members carrying out the review considers that the forthcoming implementation of the EU Collective Rights Management Directive will effectively address the areas and concerns covered by the undertakings. The group has therefore provisionally decided that the undertakings are no longer required.   This Directive, due to be implemented by each EU Member State by 10 April 2016, introduces a number of requirements that collective management organisations, such as the PRS, must meet – as well as various protections for their members. The requirements are intended to ‘ensure a high standard of governance, financial management, transparency and reporting.’   The CMA’s decision to review PRS’s undertakings is part of its wider review of the 76 existing…

Songkick and Live Nation – let battle commence!
Competition , Internet , Live Events / April 2016

COMPETITION Live sector, internet     Songkick’s legal battle with Live Nation is heating up, with Songkick filing new court papers in connection with their claim. Interestingly, Live Nation subsidiary Ticketmaster has also confirmed a new relationship with Bandsintown – a direct Songkick rival: now Bandsintown users will be able to buy tickets for shows through Ticketmaster within the Bandsintown app – a process that will make the ticket buying experience more seamless, according to the new partners. “By building on Ticketmaster’s new capabilities, we have dramatically improved the user experience, strengthening artists’ and promoters’ ability to sell out shows” said Bandsintown CEO Fabrice Sergent. Songkick, the website and mobile service that provides tickets and personalised calendars for live music events, sued Live Nation last December, alleging that the live entertainment firm – which is a significant player in tour and festival promotion, venues, ticketing and artist management – was holding the artists it works with to ransom, especially in the US, if they decided to collaborate with the gig recommendations service (such as the likes of Songkick) on fan club pre-sales. Songkick has been increasingly moving into ticketing itself – firstly merging with direct-to-fan platform Crowdsurge, and more recently Songkick has been working…

19 denied access to claim against Sony’s Spotify equity
Competition , Contract , Internet / April 2016

COMPETITION / CONTRACT Recorded music, internet     Hot on the news that Sony had officially signed a licensing deal with SoundCloud, the last of the three major labels to sign an agreement with SoundCloud in an arrangement that involves the recording label major taking an equity stake in the streaming platform, comes the news that a federal judge has told 19 Recordings that it won’t be allowed to amend a lawsuit to address Sony Music’s equity stake in Sweden-based streaming giant Spotify. Between them, the majors – Universal Music Group, Sony Music Entertainment and Warner Music Group – are believed to own somewhere around 15% in Spotify. In an ongoing US court case, Sony – which reportedly owns 6% in Spotify – was last year legally challenged by management company 19 Entertainment on the Spotify equity issue. Last June, in the midst of an ongoing lawsuit over royalties paid to artists including Kelly Clarkson and Carrie Underwood, 19 attempted to add to their claim, saying that Sony had engaged in self-dealing by taking equity in Spotify, potentially worth hundreds of millions of dollars, in lieu of demanding fair-market royalty rates from the streaming company. 19 Recordings alleged this was a…

Spotify settles NMPA mechanicals claim

COPYRIGHT Music Publishing, internet     Spotify has agreed a settlement deal with the National Music Publishers’ Association (NMPA) which will ‘allow independent and major publishers to claim and receive royalties for certain compositions used on Spotify in the United States where ownership information was previously unknown’ although one commentator noted that the problem was less of Spotify not paying and more that  “America’s long inefficient mechanical licensing framework is really behind the unpaid monies” something more in the hands of the NMPA than Spotify. The digital services argue that a lack of decent copyright data – in particular a database that states which song copyright is contained within any one recording – makes it impossible for them to file the paperwork required by the compulsory licence. Services can license the mechanical rights in songs under a compulsory licence in America, which sets a standard rate. But under that licence the digital service must alert the rights owner that their songs are being used and arrange to pay the statutory royalties. In many cases this hasn’t happened, with the streaming firms arguing that they don’t know what songs are embodied in what recordings, because the labels don’t tell them. The NMPA…

The Higher Regional Court in Munich decides that licensing duties lie with the uploaders, not YouTube
Internet , Music Publishing / March 2016

COPYRIGHT Music publishing, internet     The Higher Regional Court Munich (OLG) has decided that YouTube and its service cannot be called to account for any copyright infringements. Instead, the judges found that the sole responsibility lies with individual uploaders, even though GEMA is keen to point out “YouTube generates substantial economic profits by making the videos available”. Based on this decision, YouTube is presently not held financially accountable within the current legal framework when works protected by copyright are used on the platform.. The action against YouTbe was brought by GEMA which represents the copyright of more than 70,000 members (composers, lyricists and music publishers) in Germany, and more than two million copyright owners globally. It is one of the largest collective rights management organisations for authors of musical works in the world. The GEMA press release says this: On 28 January 2016, the Higher Regional Court Munich (OLG) pronounced the decision regarding the claim for damages against YouTube (file number 29 U 2798/15). This was another instance where the judges could not bring themselves to recognise YouTube as a copyright infringer and subsequently hold it accountable for payment of an adequate remuneration for authors. “Today’s decision is most regrettable. The court has obviously followed YouTube’s argumentation that it is only the…

PRS Launches New Anti-Piracy System ‘MAPS’

COPYRIGHT Music Publishing, online     PRS for Music has announced the launch of its new anti-piracy take-down tool ‘MAPS’. The newly developed system will “revolutionise” the way PRS for Music tackles copyright infringement of its members’ repertoire in the continued fight against online music piracy. Working in partnership with The Publishers Association, the trade body for the UK book publishing industry, MAPS has been developed for PRS for Music to deliver a bespoke notice and takedown system. MAPS will initially be available to a selected number of publisher members in March 2016. The tool will locate unlicensed and infringing content made available online and will then allow users to automatically generate and serve notices to remove the content.  It will also allow users to remove links to the content found on Google and elsewhere. PRS for Music’s Head of Litigation, Enforcement and Anti-Piracy, Simon Bourn said: “We are very excited to be rolling-out our new anti-piracy system to publisher members.  Where opportunistic and illegal use is made of our members’ repertoire online, without the necessary business model to sustain a legitimate licensed marketplace, it is important that we take action to protect the rights of our members and to…

Warners agree to share any Spotify equity windfall with artistes – but how much?
Contract , Copyright , Internet / March 2016

COPYRIGHT / CONTRACT Recorded music, internet     Warner Music Group has told investors that should the major ever sell its stake in Spotify, it will pay its recording artistes a portion of the proceeds. Warner is believed to own between 2% and 3% in Spotify – an equity position which it received via licensing negotiations – in effect for ‘free’ due to its position as the owner of a large catalogue of sound recordings. Warners also hold an equity stake in Soundcould on the same basis. Recent market analysis has given Spotify a valuation of $8bn – so the key question must be – WHAT percentage will they share with artistes – if they takethe ‘per unit’ rate from CD sales – npot very much … if they take a fair and equitable approach – upwards of half – a big difference! WMG CEO Stephen Cooper said “”As there is an ongoing debate in the media regarding how artists should be paid for use of their music on streaming services, we wanted to take this opportunity to address the issue head on” adding “the main form of compensation we receive from streaming services is revenue based on actual streams”, but acknowledged…

Pandora secures new deals with ASCAP and BMI
Copyright , Internet / February 2016

COPYRIGHT Broadcasting, internet   ASCAP and BMI have signed two separate multi-year licensing agreements with Pandora for their combined catalogues of more than 20 million musical works. Pandora claims that the new agreements will “modernise compensation in the US for ASCAP and BMI songwriters and publishers” and added that the deal would see it “benefit from greater rate certainty and the ability to add new flexibility to [our] product offering over time”. Before the new deal, ASCAP was taking just 1.75% of Pandora’s yearly income. BMI took Pandora to the US rate courts and secured a 2.5% royalty rate for its clients. Pandora then appealed this ruling, a move that it has now dropped in the wake of the new arrangement with ASCAP and BMI. “This agreement is good news for music fans and music creators, who are the heart and soul of ASCAP, and a sign of progress in our ongoing push for improved streaming payments for songwriters, composers and music publishers that reflect the immense value of our members’ creative contributions,” said ASCAP CEO Elizabeth Matthews. “We’re extremely pleased to reach this deal with Pandora that benefits the songwriters, composers and publishers we are privileged to represent,” said Mike O’Neill, President and CEO,…

Spotify face $150 million lawsuit from songwriter over infringement and non payment issues
Copyright , Internet / February 2016

COPYRIGHT Internet, broadcasting   A US recording artist has filed a US$150 million lawsuit against Spotify, alleging that the market leader in the streaming sector has knowingly reproduced his copyrighted songs – without permission or payment. David Lowery, best known for leading alternative rock bands Cracker and Camper Van Beethoven, has now asked a US judge to allow a class action suit on behalf of “hundreds of thousands” of potential plaintiffs he believes were similarly affected.   The lawsuit, filed in the federal court in Los Angeles, accuses the streaming giant of ignoring mechanical rights. The singer-songwriter and musician’s rights advocate, who holds a degree in mathematics and is a lecturer at the University of Georgia, accused Spotify of copying and distributing compositions for its online service without permission or informing the copyright holders, listing four tracks from Camper Van Beethoven and Cracker that he said were used without his permission. The lawsuit also alleged unfair business practices by Spotify saying that its payment structure was arbitrary and “depresses the value of royalties” overall: “Unless the court enjoins and restrains Spotify’s conduct, plaintiff and the class members will continue to endure great and irreparable harm that cannot be fully compensated or measured in…

Pandora shares soar after Copyright Royalty Board set new rate
Copyright , Internet / January 2016

COPYRIGHT Internet, broadcasting, recorded music   Pandora, the world’s largest Internet radio service, will pay record companies more money to stream its music following a long-awaited decision on Wednesday by the three-judge panel of the U.S. Copyright Royalty Board.  The Board, a panel of three federal judges, decides how much Internet radio stations such as Pandora must pay record companies. Under a 1995 law and its successors, disputes over this rate are settled by the Copyright Royalty Board. But the new fee represents a comparatively small increase – the record companies were seeking much higher rates. The new statutory per-stream rate os paid to recorded music rightsholders by non-interactive digital ‘radio’ platforms such as Pandora and iHeartRadio.  the non-subscription per-stream rate set by the CRB will be $0.0017, which $0.0003 more per stream than recorded music rightsholders currently receive from Pandora. According to MBW calculations, that will mean Pandora paying out $94.1m more to recorded music rightholders next year compared to 2015 for the same amount of consumption. However this rate will only apply for definite in 2016 – the following four years (2017-2020) will be determined by fluctuations in the US Consumer Price Index, which could bring the rate back down – or…

PRS and Soundcloud settle
Copyright , Internet , Music Publishing / January 2016

COPYRIGHT Music publishing, Internet     PRS for Music has written to its membership informing them that it has settled the recently launched legal action against the online music platform, which is widely used by PRS members. The licence covers the use of PRS for Music repertoire from SoundCloud’s launch, and extends to. cover SoundCloud in its plans to introduce subscription and advertising supported platforms across Europe in 2016.   Robert Ashcroft, Chief Executive of PRS for Music said: “On behalf of our members, I am pleased that we have been able to reach a settlement with SoundCloud without extended legal proceedings. This ends over five years of discussions on the licensing requirements for the platform, resulting in a licence under which our members are fairly rewarded for the use of their music.” adding “The safe harbours in current legislation still present ambiguity, and obstruct the efficient licensing of online services, but our agreement with SoundCloud is a step in the right direction towards a more level playing field for the online marketplace.”   The letter from Karen Buse, Executive Director, Membership and International, reads:   I wrote to you earlier this year to explain our action against the online music streaming service SoundCloud. After five…

Spotify face $150 million lawsuit from songwriter over infringement and non payment issues
Copyright , Internet / January 2016

COPYRIGHT Internet     A US recording artist has filed a US$150 million lawsuit against Spotify, alleging that the market leader in the streaming sector has knowingly reproduced his copyrighted songs – without permission or payment. David Lowery, best known for leading alternative rock bands Cracker and Camper Van Beethoven, has now asked a US judge to allow a class action suit on behalf of “hundreds of thousands” of potential plaintiffs he believes were similarly affected.   The lawsuit, filed in the federal court in Los Angeles, accuses the streaming giant of ignoring mechanical rights. The singer-songwriter and musician’s rights advocate, who holds a degree in mathematics and is a lecturer at the University of Georgia, accused Spotify of copying and distributing compositions for its online service without permission or informing the copyright holders, listing four tracks from Camper Van Beethoven and Cracker that he said were used without his permission.   The lawsuit also alleged unfair business practices by Spotify saying that its payment structure was arbitrary and “depresses the value of royalties” overall: “Unless the court enjoins and restrains Spotify’s conduct, plaintiff and the class members will continue to endure great and irreparable harm that cannot be fully compensated or…

Music Tank debate points out the reality of how the music industry uses the law to underpay performers
Contract , Copyright , Internet / December 2015

COPYRIGHT / CONTRACT Recorded music, streaming     Performers and songwriters – the actual creators of recorded music – have been making noises recently in the ongoing debate about reforms to copyright.  Indeed the Featured Artists Coalition and the globally-focused International Artists Organisation have issued an urgent call to the European Parliament demanding That the Parliament ensures that performer rights be included in the European Union’s current review of copyright law. The move comes as part of the campaign called Artists In Europe which is a bid to “ensure that protection for artists’ intellectual property sits at the heart of the new legislation”. Songwriters have already had a say. BASCA chairman Simon Darlow has used his speech at the 2015 Ivor Novello Awards to criticise current ‘safe harbour’ provisions in EU and US law, pointing out that the likes of YouTube undermine streaming services, and were exploiting safe harbour legislation saying this was “undermining the value of our music”. But even those who do pay songwriters and their publishers don’t pay much. Internet radio service Pandora is currently appealing the US Rate Court’s decision to order it to pay 2.5% of revenues to compensate BMI songwriters and publisher members. The rate of rival PRO ASCAP…

Copyright Royalty Board reference cheers indie labels
Copyright , Internet / December 2015

COPYRIGHT Internet, recorded music     The U.S. Register of Copyrights has delivered her Memorandum Opinion in response to a “novel material question of law” referred to her on September 11, 2015 by the Copyright Royalty Board (CRB) who will be setting royalty rates for the period of 2016-2020. The question asked whether the Board would be prohibited by the governing statutes from setting rates and terms that may differ across different types of categories of licensors – in essence, whether they can set statutory webcasting royalty rates that vary depending on the identity or category of the record company that owns the recordings performed by a webcaster. The Register of Copyrights concluded that the question was not properly referred to the Copyright Office for consideration, and therefore she could not offer an opinion on the question of differentiated rates for licensors; BUT and its a big ‘but’, the Register further stated that because all participants in the Webcasting IV proceeding had assumed a non-differentiated rate structure for licensors, that is the only reasonable outcome in the Web IV proceeding, effectively dismissing calls from the major record labels, Sony and Universal, for a variable royalty rate for internet radio play in…

Performers speak up for their rights in the big IP debate

CONTRACT / COPYRIGHT Artistes, music publishing, recorded music, internet   The Featured Artists Coalition and the globally-focused International Artists Organisation have issued an urgent call to the European Parliament demanding it ensure that performer rights be included in the European Union’s current review of copyright law. The move comes as part of the campaign called Artists In Europe which is a bid to “ensure that protection for artists’ intellectual property sits at the heart of the new legislation”. Continuing recent debates in the artist and songwriter communities, the FAC and IAO say that to achieve a “vibrant creative cultural music industry in the digital age” both the business and law-makers need to ensure there is transparency throughout the music value chain and that there is an enhanced duty of care from corporations so that artists know their interests are protected. Artists should also share in the profits from all the ways their music is exploited. FAC boss Paul Pacifico says: “To ensure a vibrant creative cultural music industry in the digital age, it is essential that the review of copyright currently underway in Europe puts the rights of creators and artists front and centre of any new legislation. If not, we stand to lose an…

Music Streaming – a timely update
Artists , Copyright , Internet , Music Publishing / November 2015

COPYRIGHT Internet, recorded music, artistes, music publishing   As Music Law Updates finalised the November Updates, news broke that streaming platform Deezer had postponed its planned IPO (initial public offering) on the Paris Stock Exchange due to difficult ‘market conditions’. MBW opined that the least of Deezer’s worries were competition from Apple Music and Spotify, a declining subscriber base and a currently loss making business model. In a timely article, George Chin looks how streaming has developed and the major players in the field – against of background of the success of streaming being blamed for declining physical product and download sales, but conversely offering a workable alternative to piracy to many consumers as habits change, and a valuable new source of revenues, at least for the record labels.   The latest Music 360 report from Nielsen (9th Sept 2015) confirms that sales of recorded music are down and that streaming is growing with 75% of the population (in the USA) listening to music online.  Given that there is now a wide choice of music streaming services available, the report reveals that when making a choice, over 80% of users cite cost and ease of use as their deciding factor…