CMU Daily 18.04.19: Australian court rules that Viagogo misled consumers, Bandcamp announces plans to simplify pressing vinyl releases

Australian court rules that Viagogo misled consumers
The federal court in Australia has ruled that always controversial secondary ticketing website Viagogo made false or misleading representations and "engaged in conduct liable to mislead the public". But the ticket resale platform has already countered that it has made changes to its website, so that the things that it always claimed were not misleading but which everyone else agreed were misleading are no longer there to be misleading. A claim which some would argue is, well, a little bit misleading.

The Australian Competition & Consumer Commission began legal proceedings against Viagogo back in 2017, accusing the company of breaching consumer rights law by employing various tactics to confuse its customers. The ACCC's gripe list mirrored that of campaigners and regulators elsewhere in the world who have also criticised Viagogo.

It included the resale site's frequent use of the word 'official', when it is - in fact - not an official seller of any tickets at all. Also, Viagogo's practice of suggesting that tickets are running out for a show, when statements about the scarcity of tickets only ever relate to the number of touted tickets being sold on its own platform. And the secondary ticketing firm's substantial but cleverly hidden fees. The court agreed with the ACCC that all of these practices constituted misleading conduct.

When it comes to the use of the word 'official' in its Google ads - Viagogo's defence has always been that links in those ads take consumers through to each artist's 'official' page on the resale site. But the judge said: "In my view an ordinary consumer would understand the words 'buy now - Viagogo official site' to convey that if the consumer followed the link, he or she would be taken to a website where tickets for the relevant event could be obtained from the official or authorised vendor".

The court is still to determine any penalties or orders against Viagogo in relation to the ACCC's list of complaints, but the government regulator nevertheless welcomed the ruling in its favour. ACCC Chair Rod Sims also added: "We urge consumers to only buy tickets from authorised sellers, or they risk their tickets being dishonoured at the gates or doors".

Meanwhile Viagogo said it was "disappointed" by the ruling, not least because the ACCC's gripe list "does not reflect our current ticketing platform and the many changes we have made". The company added that "we strongly believe our website is compliant and we will continue to work closely and constructively with the ACCC".

Viagogo has made a number of changes to its website over the last year after regulators in multiple countries began legal action against the company. Though those changes haven't necessarily dealt with all the gripes. In the UK, where the Competition & Markets Authority secured a court order to force compliance with the law, Viagogo subsequently claimed that it was now compliant, but the CMA disagreed. Meanwhile, campaigners argued that some of the changes actually made Viagogo even more confusing for consumers.

Elsewhere in secondary ticketing news, the European Parliament has voted to introduce new ticketing touting regulations that will apply across the European Union. Contained in an update of the Unfair Commercial Practices Directive, the new rules will outlaw the use of software - or bots - by touts to hoover up tickets from primary sellers, and also require those who tout on an industrial level to declare that they are professional resellers. While some EU countries, like the UK, have already introduced some ticket touting regulations, this directive update will mean the touts are at least lightly regulated across Europe.

Sam Shemtob and Katie O'Leary of FEAT, the pan-European organisation set up to campaign for more regulation of the touts, welcomed this latest development, and noted that it "represents the first step in harmonising regulation across Europe. This approach is critical as secondary ticketing companies tend to exploit regulatory gaps between countries".

And finally from the ticket tout file for today, anti-touting regulations in Ontario, Canada have been cut back, with the government there confirming that a rule which capped how much a tout could mark up a ticket is to be scrapped. The mark-up cap element of the Canadian province's Ticket Sales Act was put on hold last year but will now be completely deleted from the rule book. However, the bots ban also instigated by that Act will remain.

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Court Of Appeal upholds Royal Opera House hearing damage ruling
The Royal Opera House in London has lost its appeal against an earlier court ruling that said the venue was liable for hearing damage sustained by viola player Christopher Goldscheider.

A panel of three judges at the Court Of Appeal unanimously upheld the earlier High Court ruling that the Royal Opera House had failed to take steps to protect Goldscheider from hearing damage during a rehearsal of Wagner's 'Die Walkure'. The impairment he suffered ended his career as a musician.

The ruling, the Royal Opera House and others have argued, has potential implications not just for classical music, but the entire live music industry.

Goldscheider said that he suffered hearing damage which made it impossible for him to work as a member of an orchestra. After a period of recuperation, he found that just being near the orchestra caused pain in his right ear, leaving him nauseous and dizzy. He now has to wear hearing protection to carry out simple household tasks, such as preparing food. He ultimately left the Royal Opera House in 2014 after being unable to return to work.

He said that during the rehearsal, the viola players had been placed directly in front of the brass section. This was unexpected and incredibly loud - something he and other players complained about. He added that, on the day he sustained his hearing damage, the principal trumpet was pointed directly at his right ear.

Although he wore hearing protection, he said that the noise was still overwhelming. Sound readings showed that noise levels reached over 130dB in the rehearsal. In court it was argued that 'acoustic shock' had caused Goldscheider's hearing damage and that the Royal Opera House had not done enough to protect him from this.

In its defence, the ROH argued that 'acoustic shock' does not exist and that Goldscheider had simply developed Meniere's disease - which results in symptoms similar to those he complained of - at the same time as the rehearsal. This, the judge in the original case said, was "stretching the concept of coincidence too far". The venue also argued that a certain amount of hearing loss was justified in the pursuit of great art - an argument that was also rejected.

Although the ruling was upheld on appeal, it was relaxed slightly. The judges accepted the ROH's argument that it was not practical for players to wear hearing protection at all times during rehearsals and performances.

In a statement, ROH chief executive Alex Beard said: "The original high court ruling, which stipulated that hearing protection must be worn by orchestral musicians at all times, was widely acknowledged by the live music and theatre industries as completely impractical with potentially devastating and far-reaching consequences for the entire sector, and we are pleased that this unworkable solution has been overturned".

"We are, however, disappointed by other aspects of the appeal court's ruling and will work closely with our insurers and legal team to explore our next steps", he added.

In his own statement, Goldscheider said: "I am grateful to the court for acknowledging that more should have been done to protect me and other musicians from the risk of permanent and life changing hearing problems. We all want to find a way to participate and share in the experience of live music in a safe and accessible way and I hope that the guidance which the Court Of Appeal has given in my case will help others. I hope that the Royal Opera House will now support me to get on with rebuilding my life".

Concluding the judgement, judge Brian Leveson disputed claims that the ruling would have devastating effects for any venue where music is played. "I simply do not accept that this cataclysmic scenario represents a proper understanding of the consequences of this decision", he wrote. "For most musical venues, space will not be the problem that it is at the ROH".

"What the case does underline", he went on, "is the obligation placed on orchestras to comply with the requirements of [employment] legislation (having had two years within which to prepare). It emphasises that the risk of injury through noise is not removed if the noise - in the form of music - is the deliberate and desired objective rather than an unwanted by product (as would be the case in relation to the use of pneumatic machinery)".

Whether or not this ruling does, in fact, have wider implications for the live music industry remains to be seen. This is certainly the first time that 'acoustic shock' has been given court recognition in this way. Damages to be awarded to Goldscheider are yet to be assessed.

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Fyre Festival trustee wants to know source of Netflix and Hulu footage
The trustee administrating the bankruptcy of the Fyre Festival company has asked the US courts to force Netflix and Hulu to reveal whether they paid for any footage that featured in their respective documentaries about the doomed luxury music event.

Gregory Messer wants to know if any footage arguably belonging to the defunct Fyre business was used. Because if such footage exists and has value, it could help generate some money to pay the bankrupt firm's creditors.

According to Bloomberg, Messer wrote in a legal filing: "In order to create the documentaries, both Hulu and Netflix used unique behind-the-scenes footage of the festival. Due to a lack of information, it is impossible for the trustee to determine where the footage came from and whether such footage was an asset of the debtor's estate".

As yet neither Netflix or Hulu have commented on the legal filing, or whether they paid anyone for the footage of the Fyre festival debacle that was included in their programmes.

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Bandcamp announces plans to simplify pressing vinyl releases
Bandcamp has announced a new service to finance, press and fulfil vinyl orders for artists and labels on its platform. The company hopes this will allow more artists who wish to offer vinyl releases to do so. Currently, less than 10% of releases put out via Bandcamp are made available on the format.

"The format's resurgence - once dismissed as a niche by product of hipster affectation - is now firmly established", says the company. "And yet most new music is not available on vinyl. A mere 9% of the albums with sales on Bandcamp in 2018 offered a vinyl version, and thousands of those are sold out and appear unlikely to be pressed again".

It goes on: "The reason for this situation - and the growing pile of untapped artist revenue it represents - is that producing vinyl remains challenging. It's a costly and risky undertaking, and dealing with fulfilment and returns can be incredibly time consuming. Layer on top of that the mystery and complexity encountered by many trying to press vinyl for the first time, and it's no wonder so few people do it".

Bandcamp's new system aims to overcome this, by requiring no upfront investment from artists and labels, as well as handling pressing and fulfilment. Essentially putting in place a crowdfunding system, orders can be taken from fans, but the records will only be pressed and shipped once a minimum number of orders is taken.

"The new service eliminates risk, since fans' orders finance the pressing, rather than the artist or label", says Bandcamp. "It eliminates hassle, since we press the records, print the packaging, and ship to fans - and fulfil digital too. It offers complete control, with the design and pricing up to the artist, and Bandcamp taking no ownership of the record".

No date for all this going live has been announced, but Bandcamp says that it will be available to artists and labels later this year.

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Flying Lotus announces long-awaited new album, Flamagra
Flying Lotus has announced his first album since 2015's 'You're Dead!'. Titled 'Flamagra', the record will feature guests including Anderson Paak, George Clinton, Little Dragon, David Lynch, Shabazz Palaces, Thundercat, Toro y Moi, Solange and more.

"I'd been working on stuff for the past five years, but it was always all over the place", says the producer of the record. "[But] I'd always had this thematic idea in mind - a lingering concept about fire, an eternal flame sitting on a hill. Some people love it, some people hate it. Some people would go on dates there and some people would burn love letters in the fire".

David Lynch provides vocals on the album's first single 'Fire Is Coming'. Watch the video for it here.

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Snapped Ankles announce autumn tour
Snapped Ankles have announced that they will be out on tour in the UK again this October. The run of dates will culminate in their biggest headline show to date at Village Underground in London.

Alongside the new dates, the band have also released the video for 'Tailpipe', from their latest album 'Stunning Luxury'.

Here are the tour dates:

8 Oct: Brighton, The Haunt
9 Oct: Birmingham, Hare & Hounds
10 Oct: Sheffield, Picture House Social
11 Oct: York, The Crescent
12 Oct: Hebden Bridge, The Trades Club
15 Oct: Norwich, Norwich Arts Centre
16 Oct: Cambridge, The Portland Arms
17 Oct: Nottingham, Metronome
18 Oct: Guildford, The Boilerroom
25 Oct: Liverpool, Substation
29 Oct: London, Village Underground

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Beyonce, Alexisonfire, Frank Carter, more

Other notable announcements and developments today...

• Beyonce has released a new live album, 'Homecoming: The Live Album', the soundtrack to the new Netflix documentary about her 2018 Coachella performance.

• Alexisonfire have released the video for new single 'Familiar Drugs'. They are set to play Alexandra Palace in London on 1 Jun, with support from Chastity and Child's Pose.

• Frank Carter And The Rattlesnakes have released the video for new single 'Anxiety'. Their new album, 'End Of Suffering', is out on 3 May.

• Amon Amarth have released new track, 'Crack The Sky'. Their eleventh album, 'Berserker', is out on 3 May.

• Fat White Family have released new track 'When I Leave', taken from upcoming new album 'Serfs Up'.

• Lydia Ainsworth has released new track 'Diamonds Cutting Diamonds', from her upcoming new album 'Phantom Forest'.

• Penelope Trappes has announced a compilation of remixes of tracks from her 'Penelope Two' album. "There were no preconceived notions of how the reworks would work together, just total freedom", she says. "I never really thought I'd get the chance to collaborate with such an array of creative artists who have inspired me, but at this point, I've learned to never say never". The release features reworks from artists including Cosey Fanni Tutti, JFDR, Throwing Snow, Poppy Aykroyd and this one from Mogwai.

• Charlotte Adigéry has released one of those ASMR videos you all like so much for new single 'Cursed And Cussed'.

• Erland Cooper has released new track 'Spoot Ebb'.

• Carla Dal Forno has released the b-side from new single 'So Much Better'. This is 'Fever Walk'.

• Park Jiha will release new album, 'Philos', on 14 Jun. From it, this is 'Arrival'.

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

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Bob Dylan speaks on stage for the first time in years (to tell off his audience)
Bob Dylan angrily told off an audience for taking photos during a show in Austria earlier this week. The rant was not notable because it adds him to the list of artists who don't like having smartphones pointed at them while performing. He's been on that list for a long time. But it marked the first time he's spoken to an audience in about two years.

During the encore at Konzerthaus in Vienna on Tuesday night, Dylan halted a performance of 'Blowing In The Wind' after one verse. Instructing the band to move on to the next song, he then halted that after around 30 seconds, grumbling to the audience that they wouldn't perform if people were taking pictures.

He then stepped back, tripping over a guitar monitor, before standing with his band, apparently posing. He then shouted at the audience: "Take pictures or don't take pictures. We can either play or we can pose. Okay?"

After the audience replied "play, play", he returned to his piano and resumed playing 'It Takes A Lot To Laugh, It Takes A Train To Cry'. However, he then left the stage after it was finished, leaving the band to play final song 'Just Like Tom Thumb's Blues' without him.

We know this, of course, because someone filmed it all on their smartphone and uploaded it to Facebook. That video has now been removed after people pointed out that - in his excitement over hearing Dylan speak - the man who posted the footage had perhaps missed the irony of what he'd done.

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