CMU Daily 14.01.22: Nevermind baby case re-filed, Spotify criticised over COVID conspiracies

Nevermind baby re-files child pornography lawsuit against Nirvana
The man who appeared, as a baby, on the famous cover of Nirvana's 'Nevermind' album has re-filed his litigation in relation to the artwork. And with the band arguing that Spencer Elden has left it too late to sue because of a statute of limitations, the new filing goes to great lengths to stress that Elden has continued to suffer as a result of the ongoing distribution of the artwork over the last decade.

Elden sued Nirvana, their label and other people involved in creating the 'Nevermind' artwork last August. Claiming that Elden's guardians did not know how the nude baby photo would be used when it was originally taken, the lawsuit said that the defendants "knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so".

Nirvana and the other defendants subsequently sought to have the case dismissed. Although - while also arguing that Elden's lawsuit had no merit - core to the motion for dismissal were timings. With the specific laws they are accused of violating, there is a ten year statute of limitations. That doesn't mean Elden would have had to sue within ten years of the photograph being taken, but - technically speaking - he should have gone legal within ten years of his eighteenth birthday, which was in 2009.

The motion for dismissal was filed just before Christmas. With a 20 Jan hearing scheduled in to discuss the case, the Elden side was meant to formally respond to that motion by 30 Dec.

However, they failed to do so and - as a result - the judge went ahead and granted the defendants' motion. But with the add-on that Elden could still re-file his lawsuit, and in doing so respond to the arguments put forward by Nirvana et al regarding the statute of limitations. Which is what he and his legal team did earlier this week.

Lawyers working for Elden had already indicated in statements to various media how they would respond to the statute of limitations argument - basically that Nirvana and their business partners continue to exploit 'Nevermind' with its original artwork, including via a 30th anniversary edition last year. Therefore Elden had continued to suffer over the last ten years, within the statute of limitations. And that argument is presented in the new legal filing.

"Although the image of Spencer on the 'Nevermind' album cover was created over 30 years ago", it says, "during the ten years preceding the filing of this action and since, Nirvana LLC, Universal Music Group Inc, UMG Recordings Inc, The David Geffen Company, Geffen Records, MCA Records, Courtney Love as the executor for the estate of Kurt Cobain, Kirk Weddle, Krist Novoselic and David Grohl continued to knowingly possess, transport, reproduce, advertise, promote, present, distribute, provide, and obtain the commercial child pornography on the cover of Nirvana's 'Nevermind' album depicting Spencer, all in violation of the [previously cited] criminal statutes".

Specifically noting that recent re-issue of the album, it adds: "For example, in September 2021, to celebrate the 30th anniversary of Nirvana's 'Nevermind' album's release, the defendants re-released the 'Nevermind' album which continues to feature a lascivious exhibition of Spencer's genitals on the cover. Because 'each possession of child pornography contributes to the conduct that indisputably causes harm to the victims', Spencer's harm is ongoing and is 'directly attributable' to each defendant's conduct as alleged herein".

Nirvana et al are yet to respond to the latest filing.

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Cox Communications says labels were wrong about supposedly missing evidence in billion dollar copyright case
The major record companies are liars! Big fat liars! Outrageous unapologetic immoral lying motherfuckers! In fact, come to think of it, so prolific and brazen are their lies, they'd fit right in as members of Boris Johnson's government. Yes, we're talking that scale of lies! I should stress, these are not my opinions. This is according to US internet service provider Cox Communications.

Well, sort of. I am paraphrasing slightly. OK, quite a bit. But Cox does reckon that - not only did the record companies "conceal and misrepresent" the "provenance" of key evidence in their billion dollar copyright case against the net firm - but their anti-piracy agency MarkMonitor also incorrectly stated that certain important files and data linked to that evidence didn't exist. Because, it turns out, said evidence very much does exist.

Cox, of course, was found liable for the copyright infringement of its customers after being sued by the music industry - initially BMG, and then later the majors. The music firms successfully argued that Cox only paid lip service to its own repeat infringer policy. And enforcing that policy is a requirement for internet companies that want safe harbour protection from liability for any infringement that occurs on their networks. As a result, Cox had no safe harbour, and therefore it did have liability, and then a billion dollar damages bill.

The ISP has been trying to overturn that ruling ever since, most recently in the Fourth Circuit appeals court. Most of its recent arguments have been based on the notion that the record companies didn't properly prove in court that its customers illegally downloaded their music and therefore infringed their copyrights. Because if your can't prove the customers directly infringed any copyrights, you can't hold the ISP liable for contributory copyright infringement.

Key to that is the evidence gathered by MarkMonitor. Similar evidence is key to another lawsuit being pursued by the music industry against an ISP - in that case Charter Communications. And Cox argues that revelations in that case raise issues with the evidence that the anti-piracy firm presented during its legal battle with the majors.

During the original trial, Cox said that metadata on a hard drive of unlicensed music supposedly downloaded between 2012 and 2014 suggested that the files had in fact been downloaded in 2016. That was important because the labels' lawsuit focused on music shared and takedown notices issued between 2012 and 2014.

MarkMonitor insisted that the 2016 metadata was there because the files had been copied from the disk on which they were originally stored - between 2012 and 2014 - to a new hard disk in 2016. However, Cox said last year, developments in the Charter case meant there was now reason to believe that the files on that all important hard disk had, in fact, been originally downloaded in 2016.

In its latest legal filing, Cox now notes that during its original legal battle with the majors it also sought from the anti-piracy outfit some extra files and data linked to the evidence - specifically "source code and revision history information". That was important, they argued at the time, for assessing the reliability and credibility of said evidence.

"The purported accuracy of MarkMonitor's system was a critical issue throughout discovery, in summary judgment proceedings, and at trial, which is why Cox had served targeted discovery on MarkMonitor regarding its systems, including its source code", the latest legal filing from Cox says.

However, back then, "MarkMonitor's counsel ultimately represented that 'there is no revision history ... as MarkMonitor was only running one version during the relevant time period'; 'the source code represents the source code for the version of MarkMonitor's system during the relevant time period'; and 'the source code is in its original executable form without revision or modification'".

But yet more developments in the Charter case dispute that conclusion. Because, it says, in November last year "plaintiffs' counsel disclosed in [the Charter case] that MarkMonitor purported to have discovered certain source code and revision history data that MarkMonitor previously represented to Cox (and Charter) did not exist and it did not produce in this case".

Now, of course, that doesn't necessarily mean that MarkMonitor actively hid the existence of that source code and revision history data during the Cox case, because it might have been lost then, before being found last year. However, Cox reckons, those files and that data could have been key in its legal battle with the majors.

"The recently disclosed MarkMonitor source code and revision history data constitute 'newly discovered evidence' which may give rise to relief", the ISP argues, by which it means, it might be grounds for overturning the billion dollar ruling.

Though, it admits, formally pursuing that argument will require "the production of the source code, revision history information, and any further necessary discovery to fully demonstrate that the missing evidence was 'of such a material and controlling nature as [would] probably [have] changed the outcome'". To that end, it wants MarkMonitor to share that code and info.

Plus, with all that in mind, "Cox respectfully requests that this court enter an indicative ruling ... stating that it is inclined to grant Cox's motion for relief from the judgment, or - at a minimum - that Cox's motion raises a substantial issue that warrants further consideration by this court".

We await a response from the liars - sorry, that was hyperbole wasn't it - from the super honest - if, for a time, wrong about the existence of some key files - good folk at the record companies and MarkMonitor.

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Merlin partners with Lickd
Indie label digital licensing agency Merlin has announced a deal with YouTube-focussed music licensing platform Lickd. The agreement gives YouTubers access to music from Merlin"s network of labels and distributors for use in their videos.

"We are over the moon to be working hand-in-hand with Merlin to ensure that creators have access to music from independents - an industry sector that is growing at an exponential rate", says Lickd CEO Paul Sampson. "This partnership will not only offer opportunities for YouTubers and other content creators to expand their income, it will also put independents in a position where they can further maximise their revenue potential. It is a win-win for all".

Merlin COO Charlie Lexton adds: "We're delighted to partner with Lickd to power its platform and to give creators access to millions of songs from around the world. Our partnership will make the licensing process more streamlined for Merlin members. User-generated social video content is one of the fastest-growing sectors in the media and entertainment industries, and we"re THRILLED to help keep our members" music at the forefront".

Lickd provides pre-cleared commercially released music from both major and indie labels for use in online videos. Creators pay a one-off fee per track based-on their average subscriber numbers and whether or not their video is brand sponsored. The sell for YouTube creators is that they can use recognisable music in their videos without the worry of having their content taken down by or having to share ad revenue with a record company or music publisher.

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Another investment fund moving into music rights acquisitions
You know what the world needs right now? Another investment fund buying up music rights, that's what! I mean, think of all the famous veteran artists and songwriters still to do a mega-bucks deal around their old music. Like, erm... Well, the Five Star catalogue is still definitely up for grabs, and no one's done a deal with Las Ketchup yet. Oh and the rights to 'Agadoo'! I think they're still available.

So good news everybody - according to the Financial Times, US asset manager Pimco has decided to join the music rights land-grab party, setting aside an unconfirmed sum of money to buy itself some copyrights and/or royalty rights from the great and the good of the music-making world.

It joins investment funds like KKR, Blackstone and Apollo Global Management at that party, of course, alongside music rights specific investment vehicles such as Hipgnosis and Round Hill. Plus the pesky majors. In fact, so crowded is this party becoming, it's starting to look like a 'work event' at 10 Downing Street during lockdown.

But Pimco isn't getting into the music rights buy-up business alone. According to the FT's sources, it is following KKR's lead in partnering with BMG on this particular music venture. Although both KKR and BMG have undertaken some significant rights acquisitions alone in recent times, they also announced a partnership to pursue such deals last year, subsequently joining up to buy into the catalogues of John Legend and ZZ Top.

Neither Pimco nor BMG have as yet commented. They're probably waiting for Sue Gray to confirm if they did in fact agree to party together.

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Over 250 scientists and medics hit out at Spotify over Joe Rogan podcast
Spotify is feeling some heat from an entirely new group of critics this week. But this has nothing to do with rights and royalties, nor payola and privacy. No, this is a matter of life and death. And relates to that Joe Rogan and his Spotify-exclusive podcast.

The Joe Rogan Experience, see, has "a concerning history of broadcasting misinformation, particularly regarding the COVID-19 pandemic". And "by allowing the propagation of false and societally harmful assertions, Spotify is enabling its hosted media to damage public trust in scientific research and sow doubt in the credibility of data-driven guidance offered by medical professionals".

This is according to an open letter to Spotify signed by 260 scientists, medical professionals, professors and science communicators, who were prompted to complain now about Rogan's frequent misleading wafflings about the coronavirus following a recent edition featuring controversial COVID vaccine critic Dr Robert Malone.

But that interview, at the end of December, "is not the only transgression to occur on the Spotify platform, but a relevant example of the platform's failure to mitigate the damage it is causing", the scientists and medics say.

"We are calling on Spotify to take action against the mass-misinformation events which continue to occur on its platform", they go on. "With an estimated eleven million listeners per episode, the Joe Rogan Experience is the world's largest podcast and has tremendous influence. Though Spotify has a responsibility to mitigate the spread of misinformation on its platform, the company presently has no misinformation policy".

Going into more detail about Rogan's record in this domain, the letter says: "Throughout the COVID-19 pandemic, Joe Rogan has repeatedly spread misleading and false claims on his podcast, provoking distrust in science and medicine. He has discouraged vaccination in young people and children, incorrectly claimed that mRNA vaccines are 'gene therapy', promoted off-label use of ivermectin to treat COVID-19 (contrary to FDA warnings), and spread a number of unsubstantiated conspiracy theories".

As for the recent Malone interview, it adds: "Malone used the JRE platform to further promote numerous baseless claims, including several falsehoods about COVID-19 vaccines and an unfounded theory that societal leaders have 'hypnotised' the public. Many of these statements have already been discredited. Notably, Dr Malone is one of two recent JRE guests who has compared pandemic policies to the Holocaust. These actions are not only objectionable and offensive, but also medically and culturally dangerous".

"The average age of JRE listeners is 24 years old and according to data from Washington State, unvaccinated 12-34 year olds are twelve times more likely to be hospitalised with COVID than those who are fully vaccinated", it continues. "Dr Malone's interview has reached many tens of millions of listeners vulnerable to predatory medical misinformation. Mass-misinformation events of this scale have extraordinarily dangerous ramifications".

"As scientists, we face backlash and resistance as the public grows to distrust our research and expertise. As educators and science communicators, we are tasked with repairing the public's damaged understanding of science and medicine. As physicians, we bear the arduous weight of a pandemic that has stretched our medical systems to their limits and only stands to be exacerbated by the anti-vaccination sentiment woven into this and other episodes of Rogan's podcast".

The letter then concludes: "This is not only a scientific or medical concern; it is a sociological issue of devastating proportions and Spotify is responsible for allowing this activity to thrive on its platform. We, the undersigned doctors, nurses, scientists, and educators thus call on Spotify to immediately establish a clear and public policy to moderate misinformation on its platform".

We await Spotify's response. Efforts to silence vaccine critics always lead to claims of censorship, of course, which puts Spotify in a tricky position, especially when working with a personality whose mass appeal long preceded his tie-up with the streaming firm. However, having chosen to become a media owner through its exclusive podcasts, it probably needs more clear policies on how it deals with any one controversial opinion - or outright misinformation - that pops up on its platform.

CMU Insights recently collaborated with content and platform security company Friend MTS on a white paper looking at the challenges digital companies face in tacking misinformation and other harmful content, while also seeking to protect freedom of speech. You can download a free copy here.

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New Evan Rachel Wood documentary to explore Marilyn Manson abuse accusations
A new two-part documentary about actor Evan Rachel Wood and her decision to publicly accuse Marilyn Manson of abuse is set to premiere at the Sundance Film Festival later this month. It will then air on HBO in the spring.

Titled 'Phoenix Rising', director Amy Berg says that the film was originally about Wood's emergence as an activist working to improve legal protections for survivors of domestic abuse. Previously, Wood had said that she had been a victim herself, but had never named her abuser.

This changed after Manson released his last album, and people online started more prolifically linking him, as an ex-partner of Wood, to those earlier allegations. Wood then confirmed that those allegations were indeed against the musician in February last year.

"It wasn't [originally] about Marilyn Manson and his whole world", Berg tells Variety of the documentary. "This was about an Erin Brockovich story. We were really focused on telling a story about empowerment, something that would offer resources for women and men who are stuck in abusive situations. And that was what we were making - until she decided to name him publicly".

"Naming Manson obviously created a lot more story for us", she adds, resulting in the film being split into two parts.

This year's Sundance Film Festival will take place online. 'Phoenix Rising' will be able for attendees to view on 24 Jan. More info here.

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DEALS

Reservoir has acquired the publishing catalogue of the late DJ, songwriter, and producer Fred Rister, including collaborations with David Guetta, Kelly Rowland, Kid Cudi, The Black Eyed Peas and more. "Sometimes, fate is a good provider and selling to Reservoir is also something that Fred would have liked", says Rister's wife Isabel.

Concord Music Publishing has launched a new joint venture with songwriter and producer Tofer Brown, called Chromatic Music. Its first signing is songwriter Lauren Hungate, who has agree a worldwide publishing deal for her full catalogue. "I'm so excited to be the first signing to Chromatic", says Hungate. "Tofer is such a champion, and it was evident upon meeting him that he is the kind of person and writes the kind of songs I want to be associated with".

The Round Hill Music Royalty Fund has agreed a new deal with Whitesnake frontman David Coverdale. The deal covers various rights and royalties related to his songs and recordings. "I am THRILLED beyond words to joyfully announce that my existing catalogue of works, both songs and master recordings, which I have been involved in creating for over 50 years, is now in exceptionally safe hands with the fine people at Round Hill", says Coverdale.

Warner Chappell has signed a worldwide publishing deal with singer, songwriter and producer Tay Iwar, through its joint venture with artist management firm The Flight Club. "I've created music and wrote songs for as long as I can remember, so I'm delighted to sign a publishing deal with Warner Chappell Music", says Iwar. "I'm hugely passionate about all aspects of creating music and I'm looking forward to working with other Warner Chappell writers from around the world".

Kobalt has signed Tai Verdes to a worldwide publishing deal. "Kobalt was the most passionate about my project and artist friendly in terms of the deal", he says. "I'm huge on ownership of my music. At the end of the day, I wanted people who are ready to jump on the train. Kobalt jumped, did a somersault and stuck the landing".

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APPOINTMENTS

Warner Music has hired Janelle Curtis to be its Chief Enterprise Transformation Officer. What's that? Well, she will oversee Warner's "ongoing tech-enabled evolution across its global corporate operations, with a focus on business structures, processes, and digital solutions". Fun times. Says Curtis: "The team at Warner has ambitious plans for using transformational technologies to serve artistry, music, and commerce, and I'm looking forward to contributing to the next phase of this company's exciting evolution and diversification".

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RELEASES

Avril Lavigne will release new album "Love Sux" on 25 Feb. Here's new single "Love It When You Hate Me".

Bastille have released new single "Shut Off The Lights". Their new album, "Give Me the Future", is out on 4 Feb.

The Streets have released new single "Wrong Answers Only", featuring Master Peace.

Robert Glasper has announced that he will release new album "Black Radio III" on 25 Feb. New single "Black Superhero" - featuring Killer Mike, BJ The Chicgo Kid and Big KRIT - is out now.

Kojey Radical has released new single "Payback", featuring Knucks. His debut album, "Reason To Smile", is out on 4 Mar.

Frank Turner has released new single "A Wave Across A Bay" in memory of late Frightened Rabbit frontman Scott Hutchison. Profits from a seven-inch release will be donated to Tiny Changes, the mental health charity set up in Hutchison"s memory.

Cult Of Luna have released new single "Into The Night". The band"s new album, "The Long Road North", is out on 11 Feb.

Yeule has released new Danny L Harle-produced single "Too Dead Inside", ahead of the release of new album, "Glitch Princess", on 4 Feb.

Fyfe and Iskra Strings have revived their collaboration with new single "Interiority".

Lees has released "Night Wars", the title track from her new EP, which is out on 23 Feb.

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

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Johnny Marr mates with all his former bandmates, "except for the obvious one"
Johnny Marr has said that he's still great pals with every single one of the many people he's been in bands with over the years. Oh, "except for the obvious one".

"It's a simplistic way of putting it, but one of the reasons I've been in so many bands was because I wanted to be loyal to them", Marr tells Uncut. "It won't come as any surprise when I say that I'm really close with everyone I've worked with - except for the obvious one. And that isn't that much of a surprise because we're so different, me and Morrissey. But all of these different musicians, I can pick up the phone to any one, and just pick up from where we left off".

After leaving The Smiths in 1987, Marr went on to join numerous other bands, including The Pretenders, The The, Electronic, 7 Worlds Collide, Modest Mouse and The Cribs.

"Everyone I've worked with has been great", he goes on. "The only thing that turned to shit was The Smiths. Which is a shame, but shit happens. I hate talking about the group I formed in those terms, the group I loved. But, you know, let's get some perspective".

So, yes, I think we can add that to the list of statements made over the years by Marr to the effect that The Smiths will never ever get back together. He and Morrissey wouldn't just ring each other up, go and hang out in a pub, and then get on so well that they decide to get the band together again. Except that time they did just that. Thankfully it never came to anything though.

Anyway, these days noted lover of bands Johnny Marr is focussing on his solo career. Earlier this week he released new single 'Night And Day', taken from new album 'Fever Dreams Parts 1-4', which is out on 25 Feb.

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