|THURSDAY 14 NOVEMBER 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: Academics in both Europe and the US have this week expressed concerns about recent developments in copyright law that favour rights owners, in both cases relating to the music industry's various battles with the copyright safe harbour. ... [READ MORE]|
Academics intervene on copyright safe harbour debates in the US and Europe
In the former case the professors urge EU countries to minimise the impact of the safe harbour reform that is contained within the recent European Copyright Directive. In the latter, a bunch of American professors say a judge's recent opinion in the ongoing record industry v Charter Communications case is worryingly wrong.
More than 50 European academics - including some based in the UK - have put their name to a paper all about "safeguarding user freedoms" in the context of article seventeen (formerly thirteen) of the aforementioned directive and how it is now implemented.
That was the element of the directive most proactively lobbied for by the wider music industry, of course. It increases the liabilities of user-upload platforms who have previously said they can't be held liable for copyright infringing content uploaded to their platforms because of the copyright safe harbour that exists to protect internet intermediaries.
The paper notes that article seventeen provides two ways for user-upload platforms to still avoid liability: securing licences for any third party content uploaded by users and/or having systems in place to filter out and block copyright infringing material.
The latter, the academics say, risks infringing the rights of internet users, so therefore everyone should prioritise the former option, ie licensing.
Indeed, they add, "the legislative design of article seventeen clearly favours the first - authorisation - avenue. As noted in the statement by Germany accompanying the approval of the directive in the Council in April 2019, 'in the European compromise, licensing is the method chosen to achieve' the ... goal under this provision".
Now, the music industry would also prefer it if the outcome of article seventeen was more licensing of its rights, albeit on its terms. However, the academic paper notes there are different kinds of licensing, not all of which the music industry favours.
By which they mean compulsory or statutory licensing where rights owners are due payment when their music is used but lose the right to say "no" in licensing negotiations. Generally the music industry opposes any such moves in the digital market, reckoning that compulsory or statutory licensing generally forces the rates licensees pay down. And the aim of article seventeen is to force the rates the likes of YouTube pay up.
"[The directive] suggests, as only one example, direct licensing from the copyright holder, but leaves open other ways to acquire authorisation", the academics say. "Besides direct licensing, additional options may include collective licensing mechanisms (voluntary, extended or mandatory) and statutory licensing (relying on remunerated exceptions or limitations)".
They add: "National implementations of this provision should therefore focus on ... fully exploring legal mechanisms for broad licensing of the uses covered by article seventeen".
Much of the rest of the report focuses on copyright exceptions - scenarios where people are legally allowed to user copyright materials without licence - and concerns that any content filters employed by user-upload platforms will not be able to recognise such things. This issue was raised frequently by critics of article seventeen when the directive was working its way through the law-making process.
Over in the US, the academics are chattering about the ongoing legal battle between the Recording Industry Association Of America and the internet service provider Charter Communications.
It is one of three cases being pursued by the American labels who argue that certain ISPs should not enjoy safe harbour protection from liability for their customer's infringement on the basis that they had deliberately shoddy systems for dealing with repeat infringers. Having such a system is required to benefit from the American safe harbour.
It's one specific element of this case that the academics have intervened on by filing a so called amicus brief with the court. The RIAA wants to hold Charter liable for both contributory and vicarious copyright infringement. The latter is harder to prove but would allow the labels to claim higher damages. To prove vicarious infringement the labels need to show that the ISP directly financially benefited from its customer's infringing activity.
In another RIAA v An ISP case - against Grande Communications - the vicarious infringement claim was dismissed. But when a magistrate judge recently reviewed the Charter case he said he thought the vicarious infringement element should not be axed at this stage of the dispute.
This was partly based on Charter promoting its super-fast internet speeds, something that - the labels argue - would be particularly attractive to those accessing unlicensed content via file-sharing networks.
Hitting back at those claims recently, Charter told the court: "By relaxing the direct financial benefit prong to something far more attenuated than what is required, the [magistrate judge] threatens to open the floodgates for massive liability against ISPs for merely advertising and making available high speed internet to the general public".
The academics involved in the new amicus brief agree.
They write: "Amici submit this brief because they are concerned that [the magistrate judge's opinion] misapplies the legal standard for the direct financial benefit prong of the vicarious liability test and improperly loosens the pleading standard in a way that would impose unprecedented risks of liability and make it nearly impossible for any ISP to win [early] dismissal of bare, conclusory, and speculative allegations".
The precedent this case could set, therefore, would force ISPs to "either endure protracted, expensive and burdensome litigation ... [or] to avoid that burden, to over-enforce and over-deter possible infringing activity by users".
Although the amicus brief is specifically focused on the vicarious infringement element of the Charter case, you sense the academics are also more generally criticising the music industry for going after ISPs rather than the operators of specific piracy platforms or networks.
At one point they note: "One reason vicarious liability doctrine has thus far evolved in a measured and cautious way is that enforcement and deterrence at the ISP conduit level would have far more wide-reaching negative consequences than enforcement and deterrence at the individual infringer, content-host, or application-provider levels (eg individual websites or platforms like YouTube, Napster, etc)".
It's not uncommon for academics to express concerns about the extension of copyright protections or any new limitations being put on safe harbours and copyright exceptions.
Lobbyists and lawyers in the copyright industries often criticise such academics for obsessing about theoretical negative consequences of key reforms and rulings, arguing that many past doom and gloom predictions about stronger copyright protections infringing free speech never came to pass once those protections were in place.
Perhaps because of that, academic interventions don't always hold huge sway over law-makers and courts. But sometimes they do. It will be interesting to see what happens in these two cases on each side of the Atlantic.
After fighting to speak in civil abuse case, R Kelly pleads the fifth
The musician was sued by Heather Williams in February on the same day that criminal charges were brought against him in Illinois. She claims that she met Kelly in 1998 when she was sixteen. He invited her to his studio on the promise of allowing her to appear in a music video, but instead they became involved in a sexual relationship that she now views as abusive.
In April this year, the court ruled against Kelly in a default judgement after he failed to respond to Williams' complaint. However, that ruling was overturned after Kelly argued that he was unable to read the court papers sent to him, which was his reason for not responding. Now able to take to the stand and plead his case, Kelly has decided not to speak.
At a hearing earlier this week, the star's legal team failed in an attempt to have the case dismissed due to the statute of limitations. Judge Moira S Johnson rejected those efforts, saying that Williams may not have known as a minor that she had been abused.
The lawyers then argued that "because of the criminal ramifications" this is not "just a civil case". To that end, according to Courthouse News, Kelly's team asked for the case to be put on hold pending the criminal proceedings. Or at least that their client could "plead the fifth", ie employ his right under the US constitution to avoid being forced to incriminate himself.
Johnson approved the latter, but refused to delay the trial, saying: "I'm not staying anything. We're getting ready for trial". To that end, once Kelly's attorneys have turned over documents requested by Williams' legal team, a trial date will be set.
Nirvana's wobbly face infringement case allowed to proceed
Last year's grungy clothing line from the Marc Jacobs fashion business included t-shirts bearing a version of the wobbly smiley face image that was a staple of Nirvana's merch back in the band's hey-day. Nirvana LLC sued for copyright infringement last December. Jacobs then hit back with a motion to have the case dismissed in March.
Among other things, the fashion firm said that - while its wobbly face t-shirts were clearly influenced by the iconic Nirvana merch from back in the day - the imagery on its garments was sufficiently different to not constitute copyright infringement.
"[The original Nirvana image filed with the US Copyright Office] includes the word 'Nirvana'", the legal filing said. "The accused products do not. The [registration] includes the 'flower sniffin' writing [on the back]. The accused products do not. The [registration] includes a smiley face with Xs as eyes. The accused products do not; they use a different letter for each eye, the letters M and J, signifying Marc Jacobs".
It went on: "The only similarity between what is covered by the [registration] and the artwork contained on the accused products is the use of a substantially circular outline for the smiley face and a squiggly line used for a mouth, with a tongue sticking out".
However, according to Law360, judge John A Kronstadt has ruled that the arguments for dismissing the Nirvana copyright claim are "unpersuasive", adding that "a review of the images confirms that the allegation as to substantial similarity is sufficient".
"It is also noteworthy", the judge said, "that the accused products have combined this protectable artwork with other distinctive elements of the Nirvana t-shirt, including through the use of yellow lines on black background and a similar type and placement for the text above the image on the clothing".
The latter point alludes to the fact that, while the Marc Jacobs garment didn't have the word 'Nirvana' above the wobbly face image, as on the original t-shirt, there was another word in the same spot - 'Heaven' - which was in a very similar font to the band's logo.
This week's ruling means that the case will now proceed. Court filings confirm that there have been efforts to reach an out of court settlement, though to date those have been unsuccessful.
Harry Styles announces lovely 2020 tour
My first thought was that we should ask Harry himself about the name. Surely he'd have a comprehensive coherent answer. But it turned out he was too busy cranking up his love generator ready for tour time to be sullying himself by responding to tedious journalists.
So he sent some corporate suit out to speak for him instead. And I don't mean his agent or his promoter or his management. No, we're talking about a real corporate suit. We're talking about Master Styles' official credit card partner.
"We are THRILLED to partner with Harry to bring a new American Express Experience to our card members, including first access to his global tour and an unrepeatable night at his one-night-only show at the Forum", says Brandy Sanders, Vice President Global Entertainment Partnerships & Experiences at American Express. "We know how passionate our card members are about music, so it's exciting to continue to give them unparalleled access to the artists they know and love".
Right, so Brandy mentioned love at the end there, but was basically useless. I mean, she was mainly talking about one single show. And a show in the fucking US of A too. Because she's not talking about The Forum in London. Well, I assume she isn't. That would be foolish, because Harry Styles is not planning to perform there.
So, basically, this has been a total waste of time. But that's what happens, isn't it Harry? That's what happens when you give your tour a silly name and refuse to take responsibility for it, sending out your credit card partner to tackle the inevitable backlash. I hope you're happy, Harry. I hope you're fucking happy.
Anyway, here are the UK and Ireland dates. I should probably have just told you those straight off. Tickets go on sale on 22 Nov.
15 Apr: Birmingham, Arena Birmingham
Darwin Deez announces tour to mark debut album tenth anniversary
To announce the tour, Deez re-enacted the trailer for 'The Matrix' with a load of toys. It doesn't have anything to do with the tour (for one thing, 'The Matrix' will be 21 years old next year), but - despite its low production values - Deez's version is ten times better than both 'Matrix' sequels put together.
Anyway, the tour will hit the UK and Ireland in April, and tickets will go on sale this Friday. Here are all the dates:
20 Apr: Brighton, Concorde 2
MPG Awards shortlists announced
"It is always an exciting moment when we are able to reveal the wealth of talent reflected in the shortlists", says MPG Awards MD Tony Platt. "The judging day comes next and it is a testament to the respect with which these awards are now regarded how seriously our judging panel take their role in the process. Best of luck to all the nominees - I wish they could all win!"
They can't though. That would be pointless, and Tony knows that. It is important that we make this a competition. And with that in mind, here are the nominees:
UK Producer Of The Year: Cam Blackwood, Dan Carey, Nigel Godrich, Ben Baptie
Recording Engineer Of The Year: Cameron Craig, Daniel Moyler, Mike Horner
Mix Engineer Of The Year: Dan Grech-Marguerat, David Wrench, Mark 'Spike' Stent
Re-mixer Of The Year: Jon Hopkins, Matthew Herbert, UNKLE
Breakthrough Producer Of The Year: Carey Willetts, Marta Salogni, Sam Petts-Davies
Self-Producing Artist Of The Year: Francis Rossi (Status Quo), George Daniel, Matthew Healy (The 1975), James Blake
Breakthrough Engineer Of The Year: Billy Halliday, Caesar Edmunds, Isabel Gracefield
International Producer Of The Year: Danger Mouse, Finneas O'Connell, John Congleton
Mastering Engineer Of The Year: John Davis, Katie Tavini, Matt Colton
UK Album Of The Year: Foals - Everything Not Saved Will Be Lost, Idles - Joy As An Act Of Resistance, The 1975 - A Brief Inquiry Into Online Relationships
UK Single Song Release Of The Year: Marika Hackman - I'm Not Where You Are, Radiohead - Ill Wind, Stormzy - Vossi Bop
The A&R Award: Alex Gilbert, Ed Horrox, Jamie Nelson
Studio Of The Year: RAK Studios, Strongroom Studios, The Church Studios
The MPG Awards 2020 will take place at Grosvenor House in London on 27 Feb.
DIGITAL & D2F SERVICES
Apple Music has launched personalised playlists that look back at each individual users' year in music. The Replay playlist will show you your top 100 most played tracks of 2019, and will update weekly until the end of the year - so you have a chance to change it if you don't like the outcome. Get yours here.
Camila Cabello has announced that she will release her new album, 'Romance', on 6 Dec. People who pre-order it will get instant access to all previous singles, plus new track 'Living Proof'.
Noel Gallagher's High Flying Birds have released new single 'Wandering Star'. The track is taken from new EP 'Blue Moon Rising', which is set for release on 6 Mar. "It's that good, it sounds like it took 5.4 people to come up with it", says Gallagher of the new song. "It's already a live standard and we haven't even played it yet".
Hannah Diamond has released 'Love Goes On', the latest single from her upcoming debut album 'Reflections'. She says of the track: "'Love Goes On' for me is a continuation song to [previous single] 'Invisible', it's set in the same realm but things are beginning to become more hopeful. Part of me is still waiting for him to call me but the other part of me is starting to realise that the love I felt was always inside of me. And that even though it's over, love goes on".
Anna has released new EP 'Galactic Highways' on Drumcode. The quality of her output remains high.
Glass Animals have released new single 'Tokyo Drifting', featuring Denzel Curry. Frontman Dave Bayley explains: "The first thing Denzel said to me about the track was 'this is fire'. Then he said, 'Is this you flexin?' and I said, 'Yeah... it is... sort of'. It's an ironic internal flex". So now that's all cleared up.
Elkka has released another track from her upcoming 'Every Body Is Welcome' EP. Here's new single 'Breathe'.
GIGS & TOURS
Billie Eilish is giving fans the chance to win free tickets to her upcoming shows in return for taking part in projects to help the environment. The scheme is in partnership with the Global Citizen charity. More info here. Also, as promised, she has released new single 'Everything I Wanted'.
The Chainsmokers have announced a second London show at Brixton Academy on 15 Oct 2020, to go with the one on 16 Oct.
Nine Inch Nails won that prize they were up for at the Country Music Awards (via a sample on Lil Nas X's 'Old Town Road'). So that's fun. And a nice reminder that awards are stupid.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Current Prime Minister claims to like The Clash
In a new Tory campaign video for the upcoming general election Johnson is asked, for some reason, what his favourite band is. And for some reason he says this in response: "Look, this is either The Clash or The Rolling Stones, and mainly I listen to The Rolling Stones nowadays, so you can make of that what you will".
Famous tax exiles The Rolling Stones make sense, if anything makes sense in Johnson's world. But The Clash now? Come on, man. That would be like David Cameron claiming to like The Smiths. Which, of course, he did. Even though he couldn't actually remember their most famous lyrics properly.
That said, these days Cameron's proclaimed love of Morrissey seems odd more because the former Prime Minister is a floppy-armed leftie compared to the ex-Smiths frontman. The Clash though. The Clash make Johnson seem like, well, Johnson.
This isn't the first time Johnson has talked up his Clash fandom. Like all people, he once appeared on BBC Radio 4's 'Desert Island Discs'. He chose songs by The Rolling Stones and The Clash on there. Well, performed by The Clash, anyway. He actually selected their cover of Toots And The Maytals' 'Pressure Drop'. Presumably he was aware of the hypocrisy of him picking any of the band's own lyrics.
'Pressure Drop' is a song about karmic retribution though. So maybe the lyrics will become more pertinent for him in the coming weeks. If nothing else, it might be fun to start singing it at him.