CMU Daily 02.08.18: Major labels sue Cox Communications, UK consumers giving up on illegal downloading

Major labels sue Cox Communications
The major record companies have sued US internet service provider Cox Communications for copyright infringement, following BMG's lead in taking on the net firm over its shoddy approach to dealing with infringers among its customer base. Cox, of course, has always claimed safe harbour protection from liability for its customers' prolific pirating of top tunes.

That made BMG v Cox one of the big safe harbour cases in the US. The safe harbour means that an internet service provider cannot be held financially liable when its users distribute copyright material without licence. Though that protection is conditional on the ISP having systems in place to remove infringing material and deal with repeat infringers, if and when it is made aware of infringing activity by a copyright owner.

BMG accused Cox of only paying lip service to its own repeat infringer policies. The music firm then argued that that meant the ISP should not be granted safe harbour protection and should therefore be liable for the infringement of its music by Cox customers. In 2015, a jury sided with BMG, resulting in the $25 million damages bill.

That ruling was subsequently overturned on appeal, but based on a technicality regarding the way the judge in the original case had briefed the jury. Although Cox was successful in having the earlier judgement set aside, the appeal court's ruling basically reinforced many of BMG's arguments.

So much so, the Recording Industry Association Of America used the appeals court judgement to aid its legal battle with another ISP called Grande Communications. In a filing related to that case, the record industry trade body argued that the appeals court ruling in BMG v Cox "affirmed the holdings ... that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss".

Sony, Universal and Warner also cite the BMG case in their new lawsuit against Cox, which was filed earlier this week. They say that while Cox claims to have an internal procedure to deal with repeat infringers in its customer base, the earlier case confirmed this process to be a "sham".

Elsewhere in the new lawsuit, the majors say Cox "knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers". When the labels started flooding the ISP with copyright infringement notices,
"rather than working with plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders".

This, the labels say, meant Cox was "wilfully blinding itself to any of its subscribers' infringements that exceeded its 'cap'". Why would it do such a thing? "The reason for this is simple", the labels argue, "rather than stop its subscribers' unlawful activity, Cox prioritised its own profits over its legal obligations".

It remains to be seen how Cox responds to this new big bucks copyright action.

BACK TO THE TOP OF THE BULLETIN

We Shall Overcome publisher handed $352,000 legal bill after song declared public domain
The company that claimed to own the copyright in the song 'We Shall Overcome' has been handed a legal bill of $352,000 after conceding earlier this year that the work was, in fact, public domain under American copyright law.

A lawsuit was filed over the copyright status of the famous protest song back in April 2016. The people behind the lawsuit argued that the piece was no longer protected by copyright in the US, and in a bid to prove that fact they hired the lawyers who previously successfully argued that 'Happy Birthday' was also out of copyright in the States.

Music publisher Ludlow Music - which registered 'We Shall Overcome' with the US Copyright Office in the early 1960s - reckoned that the work was still in copyright.

However, after lots of debate about the different versions of the work and what that might mean for its copyright status, in January Ludlow Music reached a settlement with the plaintiffs in the case. As part of that settlement it declared that both the melody and lyrics of 'We Shall Overcome' are "hereafter dedicated to the public domain". Which means third parties wishing to make use of the work in the US no longer require a licence or need to pay any royalties.

Since that settlement, there has been a further dispute over whether or not Ludlow should cover the other side's legal fees. According to Law360, earlier this week judge Denise Cote decided that they should. Her reasoning was interesting. She conceded that Ludlow's defence wasn't, in the main, "objectively unreasonable". An unreasonable defence would usually prompt a judge to award the winning side their legal costs in cases like this in America.

However, Cote said that she felt the plaintiffs should still have their legal costs covered to reward them for enabling public access to "an American treasure". The judge stated: "The degree to which plaintiffs succeeded in this litigation, and the inestimable benefit they have conferred on the public through doing so, renders this the type of lawsuit that should be encouraged in order to promote the purposes of the Copyright Act".

Given Ludlow has previously noted that an educational charity was the main beneficiary of royalties generated by the 'We Shall Overcome' copyright, it presumably won't be impressed with being faced with the $352,000 legal bill. Though it is considerably less than the $1.1 million in legal fees the plaintiffs had wanted the music publisher to reimburse.

BACK TO THE TOP OF THE BULLETIN

BMG Production Music acquires Deep East Music and Tele Music
BMG Production Music has announced deals to acquire Deep East Music and Tele Music. The former was launched in London in 2007 by Ciaran McNeaney and Alex Marchant. Tele Music, meanwhile, has been operating in France since 1966.

"I am delighted to welcome Ciaran, Alex and the rest of the Deep East team to BMG Production Music", says BMG's John Clifford. "We have known them for several years and have always been thoroughly impressed with the way they have built and grown their business, combining great creative ideas with inspiring marketing, brilliant service and outstanding attention to detail".

He goes on: "Tele Music was one of the last great, independently owned production music catalogues with a rich heritage in our business. Like KPM, DeWolfe and others, the Tele Music catalogue represents a piece of production music history. We are THRILLED to extend the BMG Production Music repertoire line-up with all that Tele Music offers and excited to make this available to our clients, and Tele Music fans around the world".

BACK TO THE TOP OF THE BULLETIN

AIM launches member survey to map the digital supply chain
The Association Of Independent Music has begun a survey of its members as part of the 'Mapping The Digital Supply Chain' research it is undertaking with CMU Insights.

This major research project was launched at The Great Escape earlier this year. It is reviewing the partnerships independent labels forge with distributors and content delivery platforms in order to get their music out to the world. The resulting report will provide a guide to indie labels who are choosing their distribution partners, as well as reviewing the evolving world of music distribution and identifying quite how music gets from studio to fan in the digital age.

To inform all this work, AIM members are being encouraged to fill out a survey about how they distribute their music, the companies they work with and the decisions they make when choosing distribution partners. The survey is accessible to member labels via the AIM website, with information going out this week on how to access it.

In addition to the survey, CMU Insights is interviewing a number of label owners, distributors and streaming services to further inform the report and help construct the map.

You can find out more about the project here.

BACK TO THE TOP OF THE BULLETIN

UK consumers giving up on illegal downloading
UK consumers are turning their backs on illegal downloading thanks to streaming, according to new YouGov research.

Just 10% of the 4009 people surveyed said that they download music illegally, compared to 18% five years ago. Meanwhile, 22% of those still doing the illegal downloading thing said that they didn't expect to be still doing it in another five years.

Of the illegal downloaders, most said that they only downloaded music illegally out of frustration. In particular, when releases were only made available on one streaming platform under an exclusivity deal, or if the music they wanted was not available on any legitimate services.

The research notes that 63% of those who have stopped illegally downloading music are now using streaming services instead, one saying that it is "now easier to stream music than to pirate it. And the cost is not prohibitive". Just over a third also complained that it has become more difficult to access illegal services.

YouGov Associate Director Justin Marshall says: "While illegal downloads still present a significant challenge to the music industry, there appears to be some light at the end of the tunnel. Our research reveals a change in behaviour, with those that previously attained music by unlawful means now being enticed by the low costs and ease of use associated with streaming".

"Simply put, many don't feel they need to go to the same lengths to acquire the music they want, now they have it at their fingertips", he continues. "Whether or not streaming is what finally banishes illegal downloads remains to be seen, but there are encouraging signs".

What is not entirely clear is whether all the former illegal downloaders have moved over to licensed streaming platforms. Or if any are using the illegal streaming set-ups that have seen a significant uplift in users in recent years, according to anti-piracy experts like MUSO.

Of the former illegal downloaders, YouGov says that the top three services now being used are Spotify with 48%, Apple Music with 7% and Amazon Prime Music also with 7%.

BACK TO THE TOP OF THE BULLETIN

RAJAR Round Up: "But look at our YouTube stats", says Radio 1
Radio listening figures? Just out from RAJAR? Top five notable developments? Yeah, why not...

1. So, Radio 1 then. Its overall reach in the second quarter of 2018 was down 3.7% year-on-year to 9.2 million. Although it would like you to know that its YouTube and Vevo channel receives an average of 2.29 million views every day. And you know, it's for the kids. The kids don't understand what this radio nonsense is all about.

2. The big one, Radio 2, saw its overall audience rise year-on-year to just over 14.9 million. Though that's down slightly quarter-on-quarter. So pick your comparison point and then celebrate or commiserate accordingly.

3. In commercial radio land, it was a good quarter for spin-off stations like Magic Chilled, Capital Xtra, Heart 80s and Smooth Extra, which all saw significant rises in audience size (Magic Chilled was up 49.8%!). Although the flagship stations are still the biggest, with the top five commercial channels by audience size going: Heart, Capital, Kiss, Smooth and Classic FM.

4. What about Bauer's big relaunch of The Hits as Hits Radio with a sizeable marketing push to go with it? Well, Hits Radio had an audience of 804,000 compared to the 586,000 enjoyed by The Hits a year ago. Still modest compared to the big FM stations, but OK for a digital channel.

5. Digital radio listening - which is to say radio consumption via any digital channel rather than AM/FM - was up year-on-year, although down slightly on the first quarter of this year. It currently stands of 50.2%. Of that digital consumption, 72.3% is via the DAB platform, the rest being online or telly-based radio listening.

BACK TO THE TOP OF THE BULLETIN

Boiler Room, Matt Everitt, Robyn, more

Other notable announcements and developments today...

• Boiler Room has appointed Maria Murtagh-Hopkins to the newly-created role of Chief Strategy Officer. "We have only just begun to scratch the surface of what is possible in terms of delivering unparalleled and innovative cultural experiences to our audience, artists and partners", she says.

• The board of songwriter organisation BASCA has been refreshed, following its recent elections. Crispin Hunt remains Chair, while Jo Thomas, Martyn Ware, Dru Masters and Orphy Robinson are new additions. The organisation has also confirmed its move to new offices in Borough, South London.

• Matt Everitt is to publish a book, 'The First Time', based on interviews conducted for his BBC Radio 6 Music show of the same name. Among the artists to discuss their formative moments are Yoko Ono, Trent Reznor, Sinead O'Connor, Paul Simon, Jonny Greenwood, Jarvis Cocker, Debbie Harry, Brian Wilson and more. The book is out on 5 Nov, listen to Spotify playlists for each chapter here.

• Robyn is back with her first new music since the industrial revolution, 'Missing U'. She says: "'Missing U' is a song about this trippy thing that happens when people disappear. It's like they become even more clear and you see them everywhere".

• Alt-J have released the video for the Twin Shadow remix of 'In Cold Blood', featuring Pusha T.

• You Me At Six have released the video for new single '3AM'.

• Anna Calvi has released the title track to her upcoming new album 'Hunter'.

• Neneh Cherry has released new single 'Kong'. The track is produced by Four Tet and Massive Attack's 3D. Cherry will play Village Underground in London on 12 Sep.

• Chilly Gonzales has released new single 'Pretenderness', from his upcoming 'Solo Piano III' album.

• Ellen Allien has announced new EP 'Take A Stand'. Out on 31 Aug, it will be put out by Boddika's Nonplus Records, making it her first release not on her own BPitch Control label for two decades.

• GJan has released new single 'Clothes Off'. "It's a song about accepting your true self", she says. "Encouraging [you] to take off all your 'fake' clothes, and let people see who you really are".

• Upsahl has released the video for new single 'Rough'. "Life is never that rough if you're able to breathe and laugh and be with the person you love", she claims.

• Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

BACK TO THE TOP OF THE BULLETIN

Dave Grohl records 23 minute track to promote music education
Dave Grohl has reminded himself what it's like to be a child learning an instrument by recording a 23 minute song in an expensive recording studio, using expensive instruments, to be released on expensive vinyl. You know, like all the young people do. The process of all this has been captured in a new mini-documentary, which, like the song itself, is called 'Play'.

"Watching my kids start to play music and learn to sing or play drums, it brings me back to the time when I was their age listening to albums, learning from listening", says Grohl of what inspired the 'Play' project.

"When I take my kids to the place where they take their lessons, I see these rooms full of children that are really pushing themselves to figure this out", he goes on. "And even now, as a 49 year old man, I'm still trying to figure it out - it's not something that you ever truly master. You're always chasing the next challenge, and you're always trying to find a way to improve on what you've learned".

To be fair - and despite my customary cynical first paragraph - I suppose what Grohl means is that watching his kids learn to play an instrument made him want to challenge himself anew. Even if that took the form of an old fashioned recording session somewhat unlike what the kids would be doing themselves.

And we ought to note that for the 23 minute track, Grohl eschewed the shortcuts of modern recording, playing each part of the song live from beginning to end from memory. If he made a mistake, he just started again.

The two-part documentary will feature an interview with Grohl, plus behind the scenes footage, intercut with students from the Join The Band music school in the San Fernando Valley practicing their own instruments. The second part of the film will see all seven of Grohl's individual parts of the instrumental piece cut together so it looks like there's a room full of Grohls playing it.

As well as the straight film, there will be an online interactive version, allowing you to focus in on one specific instrument and download the sheet music for it. It'll also provide information on where young people can start learning to play, and run a series of auctions to raise money for music education charities.

Here's a trailer.

BACK TO THE TOP OF THE BULLETIN