CMU Daily 13.01.21: Judge refuses to cut the billion dollar damages Cox must pay the majors, AIM and IMPALA call on UK and EU officials to regroup to ensure visa-free touring across Europe

BOOK NOW at special rates - access to each individual webinar is just £25, plus there are additional discounts if you book into multiple sessions.

Judge refuses to cut the billion dollar damages Cox must pay the majors
A US judge yesterday refused to slash the billion dollar damages awarded to the major record companies as part of their legal battle with American internet service provider Cox Communications. Despite previously accepting that there was a case for cutting back the damages bill, judge Liam O'Grady has ultimately decided that Cox should have presented that case in front of the jury when the big copyright dispute was initially in court.

Cox, of course, was the first American ISP to be successfully sued over its repeat infringer policy. Internet companies are obliged to have such policies in place if they want safe harbour protection under copyright law, so that they cannot be held liable for copyright infringement if and when their customers use their networks or servers to access or distribute copyright-protected content without licence.

The company did have a policy to deal with repeat infringers among its userbase, but BMG showed in court that the internet firm deliberately implemented that policy in a shoddy way, so as not to have to actually sanction or cut off any copyright infringing customers. As such, it lost safe harbour protection and was liable for its customers' infringement.

Based on the precedent set in the BMG case, the majors sued various American ISPs over their repeat infringer policies, including Cox. In that case, a jury again concluded that, because of its shoddy repeat infringer policy, Cox was liable for the copyright infringement of its users. Therefore, it was ordered to pay damages to the major music companies for the 10,017 songs and recordings specifically identified in the labels' lawsuit as having been infringed by Cox customers.

The jury then decided that Cox should pay statutory damages of $99,830.29 for each of the 10,017 infringed copyrights. That is how we ended up with the neat billion dollar damages bill. Needless to say, Cox was not impressed. It said the damages it had been ordered to pay the majors were "shockingly excessive and unlawfully punitive" and "wholly divorced from any possible injury to plaintiffs, any benefit to Cox, or any conceivable deterrent purpose".

In a legal filing last February, the ISP raised various grievances with the judgement and how the jury reached it, and asked O'Grady to amend – as a matter of law – the jury's conclusion, or to order a retrial, or to slash the damages bills through a process called 'remittitur'.

Last June, the judge rejected most of Cox's arguments, declining to amend the jury's decision or to order a retrial. However, he did agree with Cox that there might be a case for cutting back the damages bill, mainly because of duplicates on the list of songs and recordings included in the majors' original lawsuit.

O'Grady agreed that the majors were possibly receiving double or even triple damages for some tracks, because in some cases the majors controlled both the song and the recording copyright in a track, and both had been listed. There were also extra complexities around derivative works.

He said that while songs, recordings and derivative works are all distinct separate copyrights, for the purposes of damages, where such things crossover only one infringement should be counted.

On the back of that decision, Cox got busy with the list of infringed works included in the original lawsuit looking for any overlaps between songs and recordings and derivative works. Last August the ISP told the court that, as a result of all that counting, 2438 of the works on the original list should be removed. Which would equate to a massive $243 million saving in terms of the damages bill.

Such a saving would have been lovely for Cox. Except that, lawyers for the record companies argued, while the judge can rule that linked songs and recordings should only be counted once - because that's a matter of law - only the jury can decide which songs and recordings are actually linked - because that's a matter of fact. So, basically, Cox should have done the overlap maths earlier and presented that information to the jury during the trial.

The ISP did actually raise the overlap issue as the original lawsuit was going through the motions and requested that the jury consider the overlaps when deciding what damages were due. However, it didn't present any evidence or testimony about the overlaps during the trial, and the judge concluded that it was unreasonable to expect the jury to go through and find the overlaps on their own.

And while Cox has now got some overlap maths to share with the court, it's too late, because O'Grady has concurred with the record companies' lawyers that the total number of works infringed is a matter for the jury to decide. As a result, he says, he can't actually interfere with their conclusions after the fact.

Concluding that the number of works infringed - and the impact of any overlaps - was "a question for the jury", O'Grady ruled: "The jury answered that question with the information available, and Cox did not provide the information to the jury that it has provided to the court in its post-trial brief".

He added: "For the foregoing reasons, the court finds that the jury's determination of the number of works infringed stands. Cox's failure to present evidence of its own calculation to the jury at trial is determinative".

Having failed to even get the damages bill cut in O'Grady's court, Cox will now take its whole dispute with the record industry to the Fourth Circuit court of appeal. Good times.

BACK TO THE TOP OF THE BULLETIN

AIM and IMPALA call on UK and EU officials to regroup to ensure visa-free touring across Europe
The UK's Association Of Independent Music and pan-European trade group IMPALA have respectively called on British and EU politicians and officials to return to the negotiating table to get a better deal for touring musicians in this post-Brexit age.

When the last minute UK/EU post-Brexit trade deal was published last month, just a week before it came into force, the music industry was quick to point out that there were no specific provisions for touring musicians. This means UK artists will have to abide by new rules when touring the EU, with each country having its own requirements.

In some cases that will mean musicians and crew needing to secure travel permits and/or equipment carnets. The cost and hassle of navigating that bureaucracy could prevent tours from happening, or mean that artists have to tour with session musicians and crew from EU countries to make their live activity commercially viable.

Throughout the Brexit deal negotiations, the music community called for specific measures to be included in any trade deal to ensure that British artists could tour the EU without any new bureaucracy being put in place post-Brexit, and - likewise - so that artists from EU countries could continue to perform in the UK without incurring any new costs or admin.

Such proposals enjoyed support in the political community, with various assurances being given along the way that touring musicians would be fine, providing that some sort of UK/EU trade deal was agreed. When that turned out not to be true, the music community was predictably angry.

Responding to that anger, the UK government was quick to blame EU officials, saying that British ministers had proposed a "more ambitious" reciprocal arrangement for business travellers that would have covered performers, but that Brussels had knocked that proposal back. Sources at the EU then told The Independent that, in fact, it was the UK that rejected a proposal from EU officials that would have covered touring musicians.

That both the UK and the EU are now playing the blame game has further angered the music community, with an assortment of music industry trade groups - including the Musicians' Union, Incorporated Society Of Musicians, LIVE and the Music Managers Forum - all calling for full transparency on what exactly was discussed during the deal negotiations, as well as a firm plan for addressing the issues touring musicians now face.

Although a spokesperson for the UK government subsequently dismissed the EU claims published in The Independent, it is actually possible that both sides are technically correct. The UK may have made a proposal that the EU rejected and the EU may also have made a proposal that the UK rejected. Which is to say, both sides agreed in principle that some kind of arrangement covering touring performers was desirable, but that they couldn't agree on quite how that would work.

If that's true, AIM and IMPALA reckon, then the two sides should get back to the negotiating table and figure something out. The ongoing COVID shutdown actually buys a little more time for such figuring out to happen, given that touring is pretty much off the table at the moment anyway. But, music industry reps point out, if no reciprocal deal for performers can be agreed, before COVID restrictions lift, it will be even harder for the artist community and the live sector to recover.

Noting that both UK and EU reps have acknowledged "the importance of musicians and crew to continue to be able to work and tour easily post-Brexit", AIM said yesterday that it was "calling for the two sides to speedily return to the negotiating table to resolve the situation in a way that is beneficial for the world-leading music sectors of the UK and EU so that, as touring restarts, the situation is resolved".

Commenting on what now needs to be done, AIM CEO Paul Pacifico said: "Much about Brexit is not as the UK music industry wanted and there are, inevitably, complexities to the UK's new relationship with the EU. However, it is essential that we focus on real issues where they arise, such as work permits, VAT and data, and work with government and EU counterparts to fix them. We must remain disciplined and focussed to ensure the music industry makes the most of every opportunity in spite of these problematic areas whilst we continue to push for a better outcome".

Confirming that AIM's EU counterpart IMPALA is also pushing officials on this issue in Brussels, that trade group's Executive Chair Helen Smith added: "IMPALA has asked the EU what happened here, emphasising that a proper and straightforward visa arrangement going both ways is crucial for our members in both the UK and EU countries. Our main focus is to help table solutions that take us forward. We are hopeful that it will still be possible on issues like this where there is a distinct shared interest".

BACK TO THE TOP OF THE BULLETIN

Shakira and KT Tunstall confirm song catalogue deals
Shakira and KT Tunstall have become the latest artists to sell off stakes in their song catalogues. Although in two very different deals.

In the case of Shakira, she's gone and done one of those fashionable Hipgnosis Songs Fund deals, selling off 100% of the publishing rights in her 145 song catalogue.

"Being a songwriter is an accomplishment that I consider equal to and perhaps even greater than being a singer and an artist", she says. "At eight years old - long before I sang - I wrote to make sense of the world. Each song is a reflection of the person I was at the time that I wrote it, but once a song is out in the world, it belongs not only to me but to those who appreciate it as well".

"I'm humbled that songwriting has given me the privilege of communicating with others, of being a part of something bigger than myself", she goes on. "I know Hipgnosis will be a great home for my catalogue - and I'm so happy to partner with this company led by Merck [Mercuriadis], who truly values artists and their creations and is an ally to songwriters everywhere who care deeply about the continued life of their songs".

Mercuriadis adds: "One step at a time, this incredible woman from Colombia has evolved into one of the most famous and influential people in the world. What no one should ever take for granted is that she is one of the most serious and successful songwriters of the last 25 years, having written or co-written virtually every song she has ever recorded".

"She is a superb creator who has led the charge from what was massive physical success to now having bigger success in streaming than most of her contemporaries", he goes on. "This is the result of her being a determined force of nature and having written songs the world is incredibly passionate about. It's wonderful for us to welcome Shakira, the Queen of Latin Music and much more, to the Hipgnosis family".

I think we probably all need a lie down after all that enthusiasm, but there's not time, because I still need to tell you about this KT Tunstall deal. This one's with Primary Wave, which has acquired a stake in the musician's songs catalogue, and also a 50% share of the artist royalties generated by her recordings.

"I have been a fan of KT from the moment I saw her first showcase at Virgin Records in 2005", says Primary Wave CEO Larry Mestel. "KT is a rare songwriting talent who writes songs that move you with a story. We are honoured to have her in the family".

Tunstall adds: "First and foremost, I consider myself a songwriter. It is absolutely re-energising in today's challenging music landscape to connect creatively with Primary Wave and to discover our mutual joy for the craft of songwriting, and still hold it in greatest of respect".

As well as repping her songs and banking half of her recording royalties, Primary Wave will also market Tunstall's name and likeness.

BACK TO THE TOP OF THE BULLETIN

Universal closes mastering operation at Capitol Studios
Universal Music has closed the mastering facilities at its Capitol Studios complex in LA - which is particularly known for its vinyl mastering. The two mastering studios at the facility will be converted into recording studios. The company blamed a lack of demand for the decision.

In a statement, a Universal spokesperson said: "At Capitol Studios, while demand for recording studios remains high, there has been an overall decline in requests for mastering services - to the point where we have decided to close Capitol's mastering facility and focus on other areas of the recording process that are in higher demand by artists, including using the space to build additional recording suites".

The tape restoration operation at the studios is also being closed. It had previously been responsible for digitising old Universal masters, but the company says that most of that work has now been outsourced to the nearby Iron Mountain company.

Several staff have been made redundant as a result of the closures, including Capitol Studios' Vice President Paula Salvatore, who recently celebrated her 30th anniversary at the company.

BACK TO THE TOP OF THE BULLETIN

The 1975 cancel all 2021 tour dates
The 1975 have announced that they are cancelling all of their scheduled tour dates in 2021, due to the ongoing COVID-19 situation. However, they have said that they will use their newfound free time to write and record a new album instead.

A European tour in support of the band's 2020 album 'Notes On A Conditional Form' was set to begin in Denmark next month. It is clear now that playing full capacity live shows will not be possible by February and March, when the dates were set to take place. Even if it were, navigating the new rules as a result of the post-Brexit UK/EU trade deal would probably cause added hassle in at least some countries.

UK fans will also be disappointed to learn that the band's show in London's Finsbury Park in June has been cancelled too. That show had already been pushed back from 2020. The band said in a statement that they were taking the decision to pull all 2021 tour dates in order for fans to claim refunds at a time when they may need the money for other things.

"These are incredibly difficult times for a lot of people", say the band. "Until we can be sure that we will be able to play shows in a way that is safe for our fans and crew, we have decided the best course of action is to cancel our touring so that, where possible, everyone can get their tickets refunded sooner rather than later".

It's not all bad news though. They go on: "We're currently making a new album and look forward to seeing you all at a show as soon as it is safe to do so".

They didn't give any indication of when that new album might be available. Though, given how many times their last album was postponed, they've probably learned their lesson on that.

BACK TO THE TOP OF THE BULLETIN

Bandsintown launches subscription live music streaming service
Gig recommendations service Bandsintown has launched a new subscription offer for livestreamed shows, providing access to a programme of online live performances for a monthly fee.

For $9.99 per month (following a seven day free trial), Bandsintown Plus users will get access to 25+ live shows each month. The initial line-up for January and February includes performances by Phoebe Bridgers, Fleet Foxes' Robin Pecknold, Flying Lotus, Wilco's Jeff Tweedy, Little Dragon, Soccer Mommy and Toro Y Moi.

"For the past year, we've been hungry for live shows and for a chance to support the artists we love", says Managing Partner of Bandsintown, Fabrice Sergent. "Bandsintown Plus is an opportunity to break the barriers of cost and location that have historically hindered live music experiences. Now, with Bandsintown Plus, live music can be more affordable, more accessible, and more approachable".

"Touring artists have been economically ravaged by COVID-19's restrictions", he adds. "Bandsintown Plus is a chance to help innovate the industry, creating new sources of revenue for artists, while deepening connections with their fans".

The platform will begin airing shows tomorrow, with performances by Melissa Etheridge and Sir Chloe. Find out more here.

BACK TO THE TOP OF THE BULLETIN

DEALS

Universal Music Publishing has signed children's band The Wiggles to a global publishing deal, covering their 54 studio albums. "Emma, Lachy, Simon and I are excited to partner with Universal Music Publishing as we go into our 30th year of Wiggling", says founder and longest-serving member of the group Anthony Field. "This is going to be such a monumental year for The Wiggles, and we couldn't be happier to be celebrating it with Universal Music".

APPOINTMENTS

Pan-European independent music trade group IMPALA has entered into a three year agreement with Vick Bain from Vbain Consulting and Arit Eminue of DiVA Apprenticeships to provide diversity and inclusion training to its members. "Training is one of the main commitments under our Diversity And Inclusion Charter, so it's great to be able to kick off 2021 with a partnership with Vick and Arit", says Executive Chair Helen Smith. "They will be crucial in helping the sector accelerate change".

RELEASES

Idles have released the video for 'Reigns' from their 'Ultra Mono' album.

Mastodon's Bill Kelliher, Veruca Salt's Louise Post and Limp Bizkit's Wes Borland are among the contributors to a cover of Jane's Addiction's 'Mountain Song' in aid of the Roadie Relief fundraising campaign.

Mogwai have released new single 'Ritchie Sacramento'. The title "came from a misunderstanding a friend of ours had about how to say Ryuichi Sakamoto", explains the band's Stuart Braithwaite. "The lyrics were inspired by a story Bob Nastanovich shared about his friend and bandmate David Berman who proclaimed 'rise crystal spear' as he threw a shovel at a sports car. The song is dedicated to all the musician friends we've lost over the years". Mogwai's new album, 'As The Love Continues', is out on 19 Feb.

Gary Numan has released 'Intruder', the title track from his upcoming new album, which is set for release on 21 May.

Flohio has released the video for 'Roundtown', from her 'No Panic No Pain' mixtape.

Dodie has released new single 'Hate Myself'. Her debut album, 'Build A Problem', is set for release on 5 Mar.

Crabs have released new track 'Bourgeois Lockdown'.

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

BACK TO THE TOP OF THE BULLETIN

Lana Del Rey says Trump comments were taken out of context
Lana Del Rey has responded to criticism over comments she made about Donald Trump and the recent violence in Washington DC, which she made during an interview with BBC Radio 1, saying that they have been taking out of context.

Speaking to Annie Mac, the musician said that she didn't believe Donald Trump had intentionally incited last week's violent attack, by his supporters, on the US Capitol building. She also said that Trump's presidency "needed to happen" and that the violence in the US capital was "a huge wake-up call".

"What I was describing with the BBC was that Trump is so significantly impaired that he may not [have known] what he was doing due to his significant lack of empathy, and the wider-ranging problem is the issue of sociopathy and narcissism in America", she wrote on Twitter last night.

In the interview, Del Rey said that she believed Trump wouldn't have been aware of the effect his words could have in inciting violence because "he's got delusions of grandeur".

"The madness of Trump, as bad as it was, it really needed to happen", she then said. "We really needed a reflection of our world's greatest problem, which is not climate change, but sociopathy and narcissism. Especially in America. It's going to kill the world. It's not capitalism, it's narcissism".

Back on Twitter last night, she went on: "I don't appreciate the larger magazines taking my well-intentioned and (believe it or not) liberal comments out of context. It's actually what I sing about quite often. It's what I've been condemned for saying. You can listen to the entire interview".

She's right, you can. It's available to listen to here.

BACK TO THE TOP OF THE BULLETIN