|FRIDAY 20 DECEMBER 2019||COMPLETEMUSICUPDATE.COM|
|TODAY'S TOP STORY: The US music industry is ending the year with a billion dollar court ruling in its favour. Which is nice. Mince pies and mulled wine all round, I reckon. Fuck it, let's have a hog roast! Because the jury in the Cox Communications copyright case has quickly found in favour of the record companies, and they did so big time... [READ MORE]|
Music industry wins billion dollar damages as jury rules in Cox case
Internet service provider Cox is accused, of course, of operating a deliberately shoddy system for dealing with repeat copyright infringers among its customer base. That, the music industry argues, means it should not be protected by the copyright safe harbour, which says that internet companies cannot be held liable for their users' infringing activities.
It was BMG who first successfully sued Cox on this issue. Seeking to exploit the precedent seemingly set in that case, the Recording Industry Association Of America - repping the major music rights companies - launched its own legal action against three American ISPs, including Cox.
For its part, the net firm tried to have the case dismissed at various stages by employing an assortment of arguments, including that the labels had not effectively proven that any of its customers directly infringed the 10,017 tracks specifically named in the RIAA-led lawsuit.
Just this week, as the jury trial was reaching its conclusion, Cox submitted a motion seeking to have the judge, rather than the jury, decide on key elements of the case. That suggested the ISP suspected things weren't looking good as the jury began their deliberations. And whenever juries get to set the damages in American copyright cases, they nearly always skew high within the wide-ranging parameters allowed by US copyright law.
Having ruled that Cox was indeed liable for the infringement, by its users, of all 10,017 tracks listed in the RIAA-led litigation, the jury seemingly then opted for a nice neat billion in damages, and then did some maths. Which means Cox is liable for $99,830.29 for each of those 10,017 illegally downloaded and shared music files.
Needless to say, the ISP intends to appeal. "We are disappointed in the court's decision", it said yesterday. "The amount is unjust and excessive. We plan to appeal the case and vigorously defend ourselves. We provide customers with a powerful tool that connects to a world full of content and information. Unfortunately, some customers have chosen to use that connection for wrongful activity. We don't condone it, we educate on it and we do our best to help curb it, but we shouldn't be held responsible for the bad actions of others".
For the music industry, a billion dollar pay day - if that is, indeed, the final amount due, it could as yet get cut - isn't to be sniffed at. But the ruling also confirms the precedent arguably set by the BMG litigation (despite some end-of-the-day complications in that case), which is that US copyright law has some solid minimum standards for safe harbour dwelling internet companies to meet, and failure to do so means safe harbour protection is removed.
Although America's Digital Millennium Copyright Act clearly states that safe harbour protection is conditional on net firms operating takedown systems and policies for dealing with repeat infringers, the law is less clear on what form those systems and policies should take.
In the early days of tech companies relying on safe harbour, it was often felt that the American courts set the bar pretty low when it came to such firms fulfilling their obligations to enjoy that protection. But with more recent judgements we have seen that bar rise. The Cox rulings - both in the BMG case and this one - definitely confirm that.
Welcoming yesterday's ruling, the RIAA's Chief Legal Officer, Kenneth L Doroshow, said: "The jury's verdict sends a clear message - Cox and other ISPs that fail to meet their legal obligations to address piracy on their networks will be held accountable. The jury recognised these companies' legal obligation to take meaningful steps to protect music online and made a strong statement about the value of a healthy music ecosystem for everyone - ranging from creators to fans to the available outlets for legitimate music consumption".
The ruling was also welcomed by the US music publishing community, with the boss of the National Music Publishers Association, David Israelite, declaring that: "Today's victory on behalf of music publishers and record labels who own over 10,000 copyrights is a clear message to ISPs like Cox who refuse to take responsibility for infringers on their networks".
"Cox received hundreds of thousands of notices of infringement and did not adequately respond or comply with its obligations to stop its subscribers from infringing on peer to peer networks", he went on. "Cox had the right and ability to prevent the continued harm to music creators and it chose its own profits over complying with the law".
Live Nation confirms deal with US Department Of Justice over its consent decree
That consent decree sought to stop the combined Live Nation/Ticketmaster from leveraging its concert promotions business to secure competitive advantage for its ticketing business, or vice versa. The agreement - originally designed to allay competition law concerns raised when the Live Nation and Ticketmaster companies merged - was due to expire next year.
In more recent years there have been various claims that Live Nation has breached the terms of the consent decree at various points, allegations the live giant has constantly denied. Addressing those claims at a conference recently, Live Nation boss Michael Rapino said many people misunderstand the purpose and workings of the consent decree, which leads them to incorrectly believe it has been breached.
Nevertheless, last week there were reports that the DoJ was planning legal action in relation to its Live Nation agreement. Subsequent rumours suggested that the government department had identified five times Live Nation had violated the consent decree, albeit out of thousands and thousands of deals done. All that chatter caused Live Nation's share price to slide.
However, yesterday's announcement seems to confirm that no legal action will now occur. In its statement, Live Nation said that not only would the consent decree be renewed for five years, but certain elements of it would be clarified, seemingly to deal with scenarios where there have been disagreements between the live music company and the DoJ on what, exactly, the original draft of the agreement meant.
Live Nation's statement reads: "We have reached an agreement in principle with the Department Of Justice to extend and clarify the consent decree. We believe this is the best outcome for our business, clients and shareholders as we turn our focus to 2020 initiatives".
Those in the live music industry and political community who have accused Live Nation of anti-competitive conduct in recent years will presumably be disappointed that an agreement has been reached, and therefore there'll be no public scrutiny on the consent decree and how it works. Though debates about the ticketing sector continue in Washington, and Ticketmaster - as both a primary and secondary ticketing platform in the US - will still be very much part of those discussions.
Meanwhile Live Nation's share price bounced back following yesterday's announcement.
Michael Jackson estate and Disney reach settlement in ABC documentary dispute
The estate went legal almost as soon as the programme had been broadcast, filing a long list of complaints about the show, which - its lawyers argued - made use of lots of copyright material that was owned by the estate without permission. This was particularly egregious, the estate argued, given Disney's long history of enforcing its own intellectual property rights.
Disney then retaliated in August 2018 in a legal filing that cited free speech rights under the US Constitution's First Amendment and the fair use principle under US copyright law. These particularly applied, it said, to the makers of news programmes and documentaries like 'The Last Days Of Michael Jackson'.
Therefore, Disney argued, it was well within its rights to make use of clips of Jackson's music and videos in its programme without licensing that material from its owners.
Now, more than a year later, the two sides have reached a settlement agreement without having to go to trial. So that's nice. Although terms are not known, a rep for the estate told Rolling Stone that "the matter was amicably resolved". Disney and ABC have not commented.
Tencent's Universal Music stake could go up to 30%
Universal Music owner Vivendi has been seeking to sell a chunk of its music company for a while now, of course. Tencent, a dominant player in the Chinese streaming market with global ambitions, was quickly tipped as a possible buyer.
Then, in August, Vivendi confirmed that it was in advanced talks with Tencent about it taking a 10% stake in Universal, with an option to buy an additional 10% down the line.
According to Reuters, sources say that that deal almost fell apart recently when investment funds meant to back the share purchase - including US private equity outfits KKR and Hellman & Friedman - walked away from the transaction.
However, Tencent is now reportedly working with Singapore's state investor GIC and other sovereign funds in a bid to rescue the deal and, as an outcome of that, the stake it takes could go up, giving the Chinese company 20-30% of the Universal music business.
The sources add that all sides have been trying to fast-track talks so to secure a deal this side of Christmas, but things could now slip into the new year.
In Europe, indie label repping IMPALA has already expressed concerns about the deal on competition law grounds. Any move to increase Tencent's stake in Universal will only add to those concerns.
ASCAP and Ivors Academy respond to new Discovery composer agreements
Variety reported last week that the broadcaster had told composers creating music for its shows that, starting in 2020, they would have to sign away their performance royalties in any new compositions aired in the US, and on music used in past programmes.
That would mean that composers would only receive an upfront 'buy out' fee for their music. Ongoing royalties earned from each broadcast and re-broadcast of a programme - which are currently industry standard for songwriters and composers - would no longer be paid.
Urging Discovery to reconsider this move, US collecting society ASCAP - which collects those performance royalties for its members - says in a statement: "Back end royalties for composers who write for TV, cable and streaming shows are critical to their being able to sustain a livelihood. ASCAP is very alarmed by the reports of Discovery Networks new policy toward composers which would have a devastating impact on their royalty streams and make it near impossible for them to make a living from their creative work".
"Composers should have agency and choice when it comes to licensing the music they create, but an ultimatum is not a choice", it continues. "Composers are an important part of the creative teams that make a show successful and it is disappointing that Discovery would not recognise the true value their work brings to their shows. We hope Discovery Networks will do the right thing and reconsider their position against composers".
Meanwhile, UK-based songwriter body The Ivors Academy has expressed concern that this shift in policy could have implications beyond the US.
In a statement, its CEO Graham Davies says: "This sets a dangerous precedent. Composers who sign up to these terms are giving away all their rights [in return] for a single upfront fee. Many composers, including our own, have raised concerns that these upfront commissioning fees have been declining in recent years, that they often do not cover all the costs involved in the commission, and there is little incentive or likelihood that broadcasters and platforms will raise these fees in the future. The opposite is expected to be the case".
In many ways, this is an issue specific to the US, where collecting societies like ASCAP and BMI do not have any exclusive rights over their members' work. Meaning that songwriters can choose - or be pressured - to waive future performance royalties. Elsewhere in the world writers actually assign their so called performing right to their collecting societies, meaning only the society can license those elements of the song copyright.
However, while industry conventions in theory should stop what Discovery is proposing from being introduced in other countries, Davies says that - in an increasingly global market - those outside the States could also be hit with a dip in income.
"The actions of Discovery are unacceptable", he goes on. "No composer should sign up to these demands. The position adopted by Discovery is symptomatic of a wider trend that poses a threat to viability of media composing in the UK and beyond. While UK composers who are members of PRS have had the safeguard that their performing right will not be taken or devalued by virtue of it being assigned to PRS, this safeguard is now also under threat. UK composers see US multinational broadcasters and platforms pitching their work to UK and non-UK composers in a global competitive market".
"Any wider adoption of Discovery-style buyout agreements must be refused because they put downward pressure on composers to relinquish their rights and undermine the important role played by [collecting societies] such as PRS", he concludes. "For most composers, the 'back end' royalties paid by PRS provide the funding for composers' careers. They are vital and must be defended".
It's not only Discovery Networks that has seemingly changed its deals for the music-makers it works with. It was also reported recently that Netflix's template agreement for composers now also asks for performance royalties to be waived in the US. However, the streaming firm says that this is entirely negotiable. But, nevertheless, as a starting point, it's not exactly songwriter-friendly.
Andrea Gray named PPL PRS Ltd MD
"We are delighted to welcome Andrea to the role of Managing Director of PPL PRS Ltd", says PPL CEO Peter Leathem. "Her impressive career and particular experience of establishing and growing first class customer service operations for multi-million pound companies will set her in good stead for taking our joint venture with PRS For Music to the next stage in its journey. Her drive and ambition will support the 200 strong team in Leicester who continue to work hard to see our performer and record company members receive the money they are due for the use of their recorded music".
PRS For Music CEO Andrea Martin adds: "We are pleased to have the benefit of Andrea's leadership as we continue to build our joint licensing business. Andrea's role will be to evolve a best in class customer experience and sell the benefits of our respective members' music to the 450,000 business premises that choose to use it and to the wider UK business community. Our members rely on their royalty income and I know with Andrea's appointment this vital revenue stream will continue to grow".
Previously Gray has worked for FTS Ltd, Nuffield Health and, most recently, Hastings Direct. She actually began her new job at PPL PRS last month, but they've kept the announcement back as a Christmas treat. PPL's COO Christine Geissmar, who has been acting as interim MD since the joint venture's original boss Suzanne Smith stood down in February, will stay on as a board director.
BTS are now ambassadors for the Formula E electric motor racing championship. They will use their position to "shine a light on important social issues and raise awareness of climate change".
The Hipgnosis Songs Fund has slipped in one more catalogue acquisition before the Christmas break. This time it's songwriter Savan Kotecha, who has written songs - often alongside Max Martin - for the likes of Ariana Grande, One Direction, Usher, The Weeknd, Justin Bieber, Nicki Minaj, Britney Spears and Katy Perry. "Savan is a special songwriter with a Midas touch", says Hipgnosis founder Merck Mercuriadis.
The UK's Competition & Markets Authority has fully approved Live Nation's acquisition of Irish live music company MCD Productions via its LN-Gaiety venture. The deal was provisionally approved last month.
Yeasayer have announced that they are splitting after fifteen years together. An upcoming Australian tour has been cancelled as a result.
Lana Del Rey has announced plans to release a "freestyle poetry" album. Just like you always wanted. The spoken word collection will be out on 4 Jan.
Ozzy Osbourne has released a semi-autobiographical video for his song 'Under The Graveyard'. It features Val's son Jack Kilmer as a young Ozzy. "To be quite honest, it's hard for me to watch because it takes me back to some of the darkest times in my life", says Osbourne.
James Blake has released the bird-tastic video for 'I'll Come Too', from his 'Assume Form' album.
Speaking of James Blake, he's been covering Aqua's 'Barbie Girl' on tour lately. So there you go.
Machine Gun Kelly has released new track 'Why Are You Here?'. It will form, he says, part of a "pop-punk" album to be released next year. So that's something to look forward to.
King Princess has delivered a last minute Christmas song in the form of 'Very Extra Festive Christmas 1', featuring Mariah Carey.
Stealing Sheep have released the video for 'True Colours', taken from their 'Big Wows' album.
Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.
Jarvis Cocker releases string quartet version of Running The World
"So here's the story", says the Cocker man. "About a month ago the Kaiser Quartett sent me a recording of their arrangement of 'Running The World' and asked if I'd consider singing on it. So I did. The song will feature on one of their upcoming record releases but - given the current [Christmas number one] campaign - we thought you might like to get a sneak preview right now".
So here is an extra classy version of a man saying a bad swear a lot. Merry Christmas.