CMU Daily 26.10.16: MP3tunes appeal narrows safe ha rbour protection, Cliff lawsuit bill may reach £1.5m

MP3tunes appeal might raise the obligations of safe harbour dwellers
Neither EMI nor MP3tunes may exist anymore, but the EMI v MP3tunes legal battle continues, and in doing so puts the spotlight on the obligations of technology companies which benefit from the so called safe harbours contained within American copyright law. As you may have noticed, safe harbours have been something of a talking point in the music industry of late, which means this long-running and at times tedious court case involving defunct companies is nevertheless of interest.

As much previously reported, MP3tunes was an early-to-market music-specific digital locker service created by MP3.com founder Michael Robertson. The record industry quickly called foul on the business on copyright grounds, initially testing the obligations of digital locker providers, though in the end much of the complicated copyright infringement lawsuit pursued by EMI actually centred on a spin-off link sharing service called Sideload.

The MP3tunes company went under during the litigation, but EMI - which became a Universal subsidiary in 2012 - successfully convinced the court to let it continue to sue Robertson personally. In 2014 he basically lost the case, and was ordered to pay mega-damages which eventually totalled $48 million, though a judge subsequently shaved nearly $7 million off that sum. Both EMI and Robertson then appealed the 2014 rulings.

The Second Circuit Court Of Appeals has now provided its take on the various disputes that remain between the record industry and Robertson, and although the court doesn't side entirely with either party, in the main the music business comes out better. Which is important for the labels because precedents are arguably being set about the obligations of other technology companies dwelling in the aforementioned safe harbours.

The safe harbour rule basically says that a company providing internet services which are then used by customers to infringe copyright cannot be held liable for that infringement providing they offer rights owners with a system by which infringing content can be removed and repeat infringers can be blocked.

American law is a little vague on how exactly those takedown systems should work. US courts initially tended to set the bar quite low in terms of how good and helpful a takedown system should be, to the extent that is sometimes felt like a deliberately shoddy system could still be compliant with the law, though more recent cases have generally set a higher standard.

One issue in the MP3tunes case was quite how to define a 'repeat infringer'. The company did block 153 users "who allowed others to access their lockers and copy music files without authorisation". However, the industry argued that other users repeatedly linking to infringing content or accessing content via those links should also have been blocked. The appeals judge concurred with that wider definition of 'repeat infringer'.

In his discussion of the various arguments, judge Raymond Lohier writes: "Based on the available evidence, a reasonable jury could have concluded that it was reasonable for MP3tunes to track users who repeatedly created links to infringing content in the sideload.com index or who copied files from those links".

He went on: "After all, MP3tunes had already tracked and removed 153 users 'who allowed others to access their lockers and copy music files without authorisation'; by comparison, requiring MP3tunes to extend that policy to users who 'sideloaded' infringing content may not be an unreasonably burdensome request".

Though, in terms of precedents, perhaps a more important element of the MP3tunes case is the debate around 'red flag knowledge'. Safe harbour dwellers in the US are required to respond to infringement or infringers on their network once made aware of such activity by rights owners, but also if there are "facts or circumstances from which infringing activity is apparent". But what does that mean, and when should technology firms act to curtail infringement on their networks on their own initiative?

The landmark ruling on this to date is Viacom v YouTube, which set the obligations of the technology providers pretty low. But in 2014, the jury ruled that MP3tunes did have 'red flag' knowledge about copyright infringement on its network that it should have acted upon, though the judge overseeing the case subsequently reversed that part of the judgement. However, the Second Circuit has now reversed the reversal.

This is partly based on the fact that until 2007 the majors weren't officially making digital music available in the MP3 format at all because you couldn't apply digital rights management to that kind of file. Therefore Robertson and MP3tunes should have known that any links to any MP3 files of major label releases at that time were infringing copyright.

Writes Lanier: "Robertson apparently knew that major record labels had not offered songs in MP3 format until 2007 ... With respect to MP3s 'sideloaded' before 2007, therefore, the jury reasonably could have concluded that MP3tunes and Robertson were aware of 'facts and circumstances that make infringement obvious'".

Despite the Second Circuit rulings, this case is not entirely at an end just yet. According to The Hollywood Reporter, the whole matter will now go back to the judge who oversaw the original case, William Pauley, who will "square all that's been decided, figure out the appropriate damages figure and, if necessary, set up another trial".

For now, the music industry has an influential judicial opinion that steps up the obligations of safe harbour dwellers, which is something it will like.

Cliff Richard's lawsuit could cost BBC and South Yorkshire Police £1.5 million
Cliff Richard claims that South Yorkshire Police "knowingly facilitated" the broadcast of a news story on the BBC that was "highly intrusive" and which caused him "serious and irremediable damage".

These are the specific words used in the singer's previously reported lawsuit against the police force and the broadcaster - which has now been seen by The Sun - and which is seeking a payment of up to £1.5 million, much of which would cover Richard's legal and PR costs to date.

As previously reported, the legal action is over the BBC's coverage of a police raid on Richard's home in Berkshire in 2014, which related to allegations of sexual abuse that had been against the singer.

Although four men ultimately made allegations of past abuse against the star, earlier this year the Crown Prosecution Service announced that there was insufficient evidence to pursue a prosecution. And at no point was Richard arrested or charged with any offences.

His litigation runs through the events that led up to the BBC's filming of the raid on his home, much of which we already knew via past statements from both South Yorkshire Police and the BBC. The filming of the police action was criticised at the time, of course, and was discussed by the parliamentary select committee on home affairs.

The lawsuit says that BBC journalist Dan Johnson approached the police force before the raid on Richard's home saying that he already knew about the investigation into allegations made against the singer. Johnson then threatened to run a story on said investigation before any search of the singer's property could be conducted, which basically "strong-armed" the police into giving the Beeb exclusive coverage of the subsequent raid, says the legal filing.

A deal was then agreed between officers and the BBC which was signed off by the force's then Chief Constable David Crompton. Richard's litigation strongly criticises this decision, saying that "no attempt" was made to actually stop the BBC from running its story instead of just agreeing a deal on coverage.

The lawsuit then presents various messages obtained by the singer's lawyers which were exchanged between police officers and Johnson as preparations for the raid on Richard's home got underway.

This includes a message confirming the time and the location of the raid, with a photo of the property attached. On the day, text messages between a police press officer and the Beeb include one from the former saying "going in now, Dan", and then a reply stating: "Give me a shout before they take anything out, so we can get the chopper in place for a shot".

Richard says that the live coverage of the raid on his home became a global news story that forced him to cancel two album releases and a new book, throwing his "creative and business plans" into "disarray". He is seeking at least £200,000 in damages, as well as looking for the police and the BBC to cover much of the legal and PR costs he has incurred since the raid, the former of which alone top £1 million.

The BBC has defended its coverage throughout, insisting the report didn't breach either Richard's privacy rights or its own editorial guidelines. Meanwhile the aforementioned Home Affairs Select Committee concluded that the BBC did not act improperly.

Richard does not agree, accusing the Corporation of "unlawful conduct" that caused him "enormous damage (including reputational damage), distress, humiliation, embarrassment, anxiety and upset, entitling him to very substantial damages".

It remains to be seen how the courts view the matter.

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Aussie web-blocking costs discussed in court
Earlier this year the Australian music industry decided to take advantage of a new law in the country that allows rights owners to seek web-blocks against copyright infringing websites by going to court and demanding that local internet service providers block access to top piracy hub KickassTorrents. Then the Americans went and forced that website off the internet entirely, so that's annoying isn't it?

Don't worry, some mainly partial and temperamental Kickass clones have appeared online since the main site was shut down by the feds, so the Australian labels and music publishers are continuing with their web-block action against those, the pesky movie industry having already nabbed The Pirate Bay for its first big utilisation of Aussie web-blocking laws.

This means that the Australian music industry was back in court again this week seeking a web-block against a dead website, but not really, actually against the clones, because God knows, we really need to stop those damn clones. It's a development which is only really interesting because Australian web-blocking is brand new, and that means there has been much debate about how exactly the web-blocking process should work.

The country's net firms are no longer objecting to the concept of web-blocks, but they are still bickering about who should pay for the technology and admin costs of putting blockades in place and then subsequently blocking all and any proxies that pop up to help naughty file-sharing types still access their piracy sites of choice. Which may or may not be dead piracy sites that no longer exist, except in a second rate partial unofficial form.

Different ISPs have made different proposals about what they may charge for instigating the web-blocks, while rights owners obviously want to keep their costs to the absolute minimum. It remains to be seen what is agreed in this case, and whether that sets a cost effective standard that will allow the Australian music and movie industries to follow their UK counterparts in applying for a stack of blockades down the line.

Sony Music invests six figure sum in Gigmit
Sony Music has invested a six figure sum in Berlin-based online gig booking platform Gigmit, giving the major label a 15% share in the company, according to Grüenderszene.

Gigmit is an online database of artists and gigs, allowing clubs, promoters and festivals to book acts. To date the service has worked with festivals, including Berlin Music Week, Melt, Sziget and Tramlines.

"The Gigmit business model and our expertise in developing new talent sustainably are a perfect match", says Philip Ginthör, CEO of Sony Music Germany, Switzerland and Austria. "Through this partnership we will generate both artistic success and economic growth".

Gignit CEO Marcus Rüssel adds: "I'm really happy to have as strong a partner as Sony Music by our side. This is our biggest deal to date. Through the effective use of synergies, Gigmit will be able to refine its content, which in turn will allow us to strengthen our position and increase our influence in the German-speaking market".

Spotify lets video licences lapse, insists it remains committed to video
Less than a year after publicly launching its video platform, Spotify has let licensing deals with various big name content providers lapse. Gone are all the videos from Vice, ESPN, MTV, Comedy Central and more that you'd totally forgotten were there in the first place. However, the company insists that it remains committed to its video feature.

Video content was one of the big new features (some of which have never gone live) announced at a Spotify press conference in May 2015, pre-empting the launch of Apple Music. Video was a particular focus, and notably non-music videos, with Comedy Central content particularly highlighted.

Swedish website Breakit, which first reported the news of the bought-in videos disappearing, claims that Spotify spent around £45 million on securing licensing deals for video content. On the streaming service's mobile app in the UK, most video content featured is now Spotify's own in-house productions, with one from the Financial Times and a few TED Talks also on offer.

A spokesperson for Vice told Breakit: "Spotify has shut down the entire service, so I think that is where you will find your answers".

However, in a statement, Spotify denied that this was the case, saying that it remains committed to video: "We're 100% committed to video and podcast content and exploring new and fresh ideas for our audience, and we have lots of great original content available now or coming soon, such as our Landmark Metallica documentary. We work with many different non-music content partners to develop and deliver content, and that roster of partners naturally changes from time to time".

Ah yes, don't forget the podcasts, which seemingly remain untouched. Yep, you can still listen to the CMU Podcast on there, no need to worry about that.

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Avenged Sevenfold to live-stream virtual reality show tomorrow
Avenged Sevenfold have announced that they will perform a live-streamed show tomorrow night, available to watch in virtual reality. The show will be aired on Universal's new VRTGO platform, a partnership with VRlive.

"We are constantly working to create opportunities for our artists to connect with their fans in new and exciting ways", says Michelle Jubelirer, COO of Universal's Capitol Records. "We're THRILLED to work with Avenged Sevenfold and VRlive to bring this unique experience to Avenged Sevenfold fans around the world".

"VRTGO is a truly immersive and creative platform for our artists to tell their stories and invite their fans around the world to experience live performances and music videos like never before", claims Universal's SVP Digital Marketing Innovation Deborah Hyacinth. "We've employed state of the art technology to make VRTGO a cross-device platform and home to some of the world's best VR content".

The show will take place at 4.30pm UK time tomorrow via Avenged Sevenfold's website. It will be available to watch in 3D 360° and virtual reality. Fifty people attending the show in person will get to watch the proceedings via Samsung Gear VR headsets in the room, which seems only slightly pointless. They do know about actual reality, right?

We should note, if you're yet to join the seeing-things-in-3D or going-outside revolutions, you'll also be able to watch the gig in boring old 2D on the band's Facebook page. And if all of this sounds like too much of a faff, you could just watch the band's new music video for 'The Stage'. Or you could just not bother with any of it at all and have a biscuit instead. A 3D biscuit. In actual reality.

Stornoway to split after 2017 farewell tour
Stornoway have announced that they will split after a farewell tour next year. After more than ten years together, the band have released three albums, most recently last year's 'Bonxie'.

"We have achieved far more as a band than we ever dared to dream back as students in a drafty east Oxford garage and we are immensely proud of the music we have created together", say the band in a statement. "We are eternally grateful to all our wonderful fans and friends who have given us so much support throughout our career, and we look forward to celebrating the last ten years with you on our farewell tour next spring".

Tickets for the shows go on sale on Friday. Dates as follows:

27 Feb: Gateshead, Sage
28 Feb: Bristol, The Lantern
1 March: Cardiff, Tramshed
2 March: Exeter, The Phoenix
4 March: Manchester, Academy 3
5 March: Leeds, Brudenell Social Club
6 March: Glasgow, Oran Mor
8 March: Brighton, Komedia
9 March: Cambridge, The Junction
10 March: London, Shepherds Bush Empire
12 March: Oxford, New Theatre

Bob Dylan still quiet on Nobel win, organisers warn he may lose prize money
This whole Bob Dylan Nobel Prize thing just keeps dragging on, doesn't it? I think we established last week what Team Nobel need to do in order to get the man himself to acknowledge them giving him their Prize For Literature. But they're still in a stalemate, with Dylan refusing to acknowledge his win.

In an interview with Swedish TV station SVT at the weekend, one member of the Swedish Academy, which chooses the winner of the prize, Per Wästberg, said: "I think it's fair to say that his reaction so far has been rude and arrogant".

With still no sign of whether or not Dylan plans to accept the award, it's now being put about that he might not get his $900,000 prize money if he doesn't fall into line. Which also seems a bit rude and arrogant, so at least everyone's back on a level footing.

According to Reuters, in order to receive his cash, he must deliver a lecture "relevant to the work for which the prize has been awarded" no later than six months after 10 Dec, the anniversary of Alfred Nobel's death.

"That is what we ask for in return", said a spokesperson. "We are trying to find an arrangement that suits the laureate".

That might mean that he could actually perform a concert, instead of giving a traditional lecture. And who wouldn't like to go to Sweden and sing a few songs in return for almost $1 million. I'll do it, if he's not keen.

KDA, Björk, Minor Victories, more

Other notable announcements and developments today...

• Tinashe features on new KDA single 'Just Say', the video for which you can watch here.

• Björk has shared a trailer for her latest virtual reality video, for her song 'Family'. The full video is on display at the Montreal showing of her VR exhibition at the DHC/ART Foundation For Contemporary Art.

• Minor Victories will release a reworked instrumental version of their debut album, titled 'Orchestral Variations', on 27 Jan. Here's the new version of 'Cogs' from it.

• Anna Meredith has released a new video for her song 'The Vapours'. You will watch it now because you are excited.

• Anna Von Hausswolff is releasing a new version of her organ piece, 'Källan (Betatype)'. Two editions will be available on vinyl from 18 Nov, pre-order here.

• Fufanu have released new single 'Bad Rockets', taken from their new album 'Sports', which is due out on 3 Feb.

• Olga Bell has released the video for new single 'Zone'.

• Lite will release new album 'Cubic' on 18 Nov. From it, this is 'D'.

Kent Union criticised after promoting Black History Month with Zayn Malik photo
The Kent Union has been criticised after using Zayn Malik as one of the faces of its Black History Month celebrations. The Kent University students' union included Malik and also London mayor Sadiq Khan in a series of posts to mark the annual celebration of black culture.

In a statement, the Union said that it had devised a campaign around Black History Month to celebrate "a range of ethnic cultures", which is how Malik, whose father is British-Pakistani, came to be used.

Criticising the post and the campaign in general, the university's African-Caribbean Society said that it was not involved in this "diluted version" of the event and that it is "deeply offended by the posts and find them disrespectful and poorly thought through".

In a statement this morning, Kent Union said: "As you are aware, last night we removed the posts about Zayn Malik and Sadiq Khan. We would like to unreservedly apologise for any offence or upset that was caused by this post. In the planning stages of Black History Month, we worked with students to develop a campaign that celebrated a range of ethnic cultures. However we can see that many of our students disagree with the direction the campaign took. We made a mistake".

It went on: "The officers will be meeting with the African-Caribbean Society this morning to apologise and discuss where we go from here. We really value the input of all of our students in our liberation campaigns and welcome the opportunity to talk to any of you further".