Monthly Archives: June 2009

Testing, testing

In the interest of the continuing Social Media Experiment, I’m just seeing if this works as sent from Ping.fm – please bear with me!

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Breaking News – Downloader liable for £1 Million in damages for downloading 24 Songs

It had to happen sometime. In a week where we have seen Lord Carter’s Digital Britain report criticised for a failure to provide any real measures to crack down on online piracy and the Intellectual Property Office propose raising the maximum fine for Copyright Infringement in the Magistrates’ Court from £5,000 to £50,000, a Minnesota Woman was yeasterday found liable for illegal file-sharing and ordered to pay $1.92 Million in damages to a group of major US record labels.

Not only is the amount of the damages awarded significant, but so is the number of specific songs that Jammie Thomas-Rasset was alleged to have downloaded – 24. This equates to around $80,000 for each song. The case actually got underway back in 2006, when Jamie Thomas Rasset was sued by six of the major US record labels and ordered to pay $200,000 in damages; a retrial was ordered after a Judge found that the Jury had been given the wrong instructions.

A case like this has been a long time coming. Whilst the international Entertainment Industry has been calling for tougher measures to be taken against file-sharers and the RIAA (a traded group representing the US recording industry) has been especially active in pursuing them, this is the first case which has actually gone to trial, and in front of a Federal Jury. While the significance of the verdict is already in dispute, the RIAA is celebrating a decisive victory in its ongoing battle against filesharers, which has seen over 30,000 individual claims brought since 2003.

Although we are talking about a US decision which may not yet set a precedent due to the fact it was a jury trial and set in a system which allows for much greater punitive damages awards than in the UK, the significance of this case can’t be ignored. It throws into sharp relief many of the practical issues surrounding how illegal downloaders may be dealt with by the Court – the RIAA has settled claims against the vast majority of other downloaders it has pursued for an average fee of $1,500 and has said that it was always willing to come to a settlement in this case without going to trial, but it looks as if Thomas-Rasset was determined to have her day in Court and this may well be what has led to such a huge award of damages. Although she only downloaded 20 or so songs, she was also accused of uploading around 1700 songs to the web via the Kazaa file-sharing site, which has recently become a legal download service.

Under UK law, we’d have to look at similar issues. It is an infringement of copyright to copy a song via a P2P file-sharing service onto your computer but it’s also an infringement to make a copy available to the public via uploading it for other users to copy from you. This is the major issue behind illegal downloading; people sharing their entire record collections with the world in such a way as to prevent record companies charging for them. Either way, copyright infringement is punishable by the Civil courts through claims being brought by Copyright Owners but it’s also a criminal offence punishable by an unlimited fine.

Previous cases in the UK have seen very large-scale downloaders punished, but so far the Music Industry and the Government have refrained from going after users who have copied a smaller amount of material. The Music Industry has lobbied the Government to cut off the internet connections of persistent offenders after a warning and “three strikes”. France passed a similar law recently, only to see it repealed on the grounds of being unconstitutional. This week’s Digital Britain report out Ofcom in charge of reducing illegal downloading, but takes a “gradual” approach, beginning with warning letters to filesharers and eventually slowing down their broadband connection.

The Music Industry was outraged and has always wanted the Government to take a more proactive role in curtailing the problem, as the only other way to do so would be for the BPI or record labels to follow a similar campaign and sue downloaders individually, which would lead to huge legal costs and most likely see the Courts flooded with similar claims. It’s also not straightforward to prove exactly who downloaded illegally when a number of people use the same computer. Thomas-Rasset claimed that her ex-Husband or even her Children may actually have been the guilty parties.

But there’s also another issue. Thomas-Rasset has said that she simply can’t pay the fine. This will be the major problem for the Music Industry if a similar trend for prosecutions begins in the UK. Copyright cases are usually expensive for a Record Label to litigate and there’s no guarantee that a man in the street would be able to pay the Claimant’s costs if a claim came before the Civil Courts, or even a fine in the Criminal Courts, potentially leading to a number of phyrric victories for the Music Industry which will almost certainly generate a huge amount of bad publicity in exchange for creating a deterrent to illegal filesharing which will take some time to filter through into the public consciousness.

A number of measures need to be put in place to control the problem – firstly the Government needs to educate the Public on how Copyright works and why illegal downloading is such a problem. Secondly, it needs to deal with offenders in a way which sends a clear message that filesharing will not be tolerated in their new “world-leading knowledge economy” and finally it falls to the music Indusry to make as much content as they can available for legal download at an affordable price and look at new ways of doing business and engaging with their Customers.

Even so, it’s probably only a matter of time before the first major deterrent case against an individual filesharer comes before the UK Courts. Although it could be a public relations disaster for the music industry to turn on its users, it may be the only way for them to get their message across. It’s very doubtful that a UK Court would ever award such a huge amount in damages, mainly because our system would value each song at the sale price charged for it and then consider the number of times it has been copied to come up with a figure. It’s a fairly safe bet that the Royal Courts of Justice won’t award £50 to 60,000 for a song which could be purchased via iTunes for around 80p. Any criminal penalties, though, could be very severe if prosecutions are brought after the proposed raising of the maximum fine for copyright infringement in the magistrates Court being from £5,000 to £50,000.

Apparently the RIAA’s US campaign has seen a cut in illegal downloading figures. If the Government really does intend to reduce filesharing by 70%, it’s likely that we’ll see more extreme measures used to reach that target.

The Carter Report – Analogue suggestions for Digital Britain?

Intellectual Property Issues are at the forefront of national news after yesterday’s unveiling of Lord Carter’s “Digital Britain” report, which sets out the Government’s vision for ensuring the UK’s place as one of the world’s leading “digital knowledge economies”.

Many commentators, however, are already concerned that the Report is fundamentally flawed, setting out the importance to the economy of Broadband Access to as much of the UK as possible, but also unveiling the first set of real measures designed to clamp down on internet piracy. The reaction from the music industry in particular has been curt, describing the Report’s conclusions as “digital dithering”.

Among more headline-friendly recommendations such as a monthly 50p “broadband tax” on every home or business with a landline and cutting into the BBC’s licence fee to partly fund the national upgrade, the Report sets out a number of measures to bring internet piracy under control, including moving the responsibility for reducing unlawful filesharing to OFCOM, who will send out written warnings to illegal downloaders and release details of the identities of repeat offenders, as well as allowing ISPs to slow down the speed of broadband connections to offenders or blocking them from websites which host pirated content.

The Digital Britain report has been a long time coming and has been heavily anticipated by the Digital and Creative Industries, mainly due to the fact that they have wanted to know how the Government intends to deal with the very real and growing problem of illegal downloading.

It’s a problem which some are beginning to feel has been exaggerated by the entertainment industry but there is a very real issue which the Government has been wrestling with for some time – music, software and movie piracy now takes place primarily over the internet and the process is made a lot easier if you have a broadband connection.

Over the web, you can transfer files extremely quickly and simply, which is far more worrying to the entertainment industry than Pirate DVDs being sold in pub car parks. Illegal copies can be spread around the world in a matter of days if not hours. 20th Century Fox saw the extent of the problem recently when an unfinished DVD-quality copy of “X-Men Origins: Wolverine” made its way onto the web and was downloaded over a million times before its release in cinemas. It still made over $85 Million its first weekend, but many believe that it would have made a lot more had a million people not seen it first.

Originally, the Internet Service Providers (ISPs) were asked to take more responsibility for illegal downloading as they make it possible in the first place by providing a connection to the Internet. Unsurprisingly, this met with huge resistance from every ISP on the grounds that policing the activities of their users would be nearly impossible, except for Virgin, which began sending out letters warning users who were using their services to download illegally to stop.

After continuing calls from the global entertainment industry to take action, France took the first step towards what was suggested should be the solution in the UK – cutting off access to the internet for illegal downloaders after “three strikes”. This didn’t last long, however, as it was held to be unconstitutional.

The Government has said that it intends to reduce illegal filesharing by 70% within two years. This is a very ambitious, if not impossible target. Given the fact that there is still clearly a huge amount of confusion in the minds of consumers over the difference between legal and illegal downloading, warning letters will take a long time to have any effect, if indeed they do at all.

At the end of the day, a Court Order would still be needed to finally disconnect a downloader from the Web, which is costly and time-consuming, with much of the legal budget being picked up by the entertainment industries. Even then, the technology to pinpoint exactly who is using a computer to download illegally is already becoming out of date and the process is extremely slow. If you went after each individual pirate, then the cost would potentially bankrupt the creative industries and lead to a situation where they simply can’t afford to create new content.

The solution has to be in educating the public and getting the message across that if you don’t pay to download content or it’s not made clear that the download is completely free of charge, then the chances are that the owners of copyright in the content haven’t given you permission.

Under the black letter of the law, the vast majority of material available for download, legal or otherwise, is protected by copyright. If you copy or download it without permission, then either the owner of the content can sue you or you could be prosecuted. No arguments about the fairness of the entertainment industry’s price structure or the lack of availability of content are going to change this, as it is the only way for money to be made out of creativity and as such the only way the industry can survive.

Until business and pricing structures change or the Government relaxes copyright protection, then illegal downloaders are likely to meet much harsher action as record labels or movie studios start to target the audience the Government doesn’t want them to – the man in the street, rather than organised criminals. Although there’s a difference in the penalties that an occasional downloader may face, there’s no change in the legal approach – copyright infringement is, according to the report “tantamount to theft”.

What is certain is that illegal downloaders will face penalites more often, and that as the entire country moves towards being more connected, those penalties will become harsher as the entertainment industry struggles to stay in business.

Sabbath Bloody Sabbath: What’s In A Name? – Ozzy Osbourne sues over the rights to “Black Sabbath”

It’s a long-standing legal tradition amongst England’s biggest musical exports. It happened to Fleetwood Mac in the 1970s, Pink Floyd in the 1980s and now Black Sabbath is now facing a battle over exactly who has the right to use their name after original vocalist and music icon Ozzy Osbourne announced his intention to sue founding guitarist Tony Iommi over ownership of the Black Sabbath brand.

The hugely influential and immensely successful band has had a long and complicated history and is well-known in the music community for having a revolving-door lineup after Osbourne was fired in 1979. Subsequent lineups have met with varying degrees of success, leading to a lucrative reunion tour featuring the original lineup in 1997 and persistent rumours of a new album.

However, in the intervening years Osbourne became a star in his own right, with combined record sales and concert income which easily eclipsed those of his former band, who carried on with different frontmen (including Ronnie James Dio of Rainbow and Ian Gillan of Deep Purple) until bassist Geezer Butler and drummer Bill Ward also quit the band in the mid 1980s, leaving Iommi to carry on under the “Black Sabbath” name (sometimes due to the demand of his Record Label) with a largely anonymous cast of session musicians and other temporary replacements until the “Reunion” tour, which led to the band being inducted into the UK and US Rock & Roll Hall of Fame in 2006 and saw Osbourne and Iommi performing “Paranoid” at the Queen’s “Party At The Palace” concert to celebrate her Golden Jubilee.

Mainly due to Osbourne’s solo recording commitments, the original lineup of Black Sabbath has not been able to finish work on a new album or organise another tour since 2004, leading Iommi to reconvene one of the many lineups of Black Sabbath since 1980 as “Heaven and Hell” and release new album “The Devil You Know” earlier this year.

Iommi himself sued concert promoter Live Nation in December 2008, claiming that the music conglomerate sold merchandise which used Black Sabbath’s logo after the expiration of an agreement between them in 2006, and shortly afterwards took action to reclaim Black Sabbath’s trade mark. Most of the music press believe that it was Iommi’s claim which ultimately led to Osbourne taking action against him.

This kind of dispute is getting more and more common among the elder statesmen of the UK music industry, especially where they’ve been able to reform after long periods apart and extend their lifespan way beyond what they originally expected. Pink Floyd, one of the most successful groups the UK has ever produced, had a very similar dispute in the 80’s when frontman and songwriter Roger Waters left and tried to put a stop to the rest of the Band carrying on without him under the same name.

This however, is a little bit different. Black Sabbath made their name based on the original line-up, which was hugely successful. In the case of Pink Floyd, the band carried on after Waters left to the same kind of success that they’d enjoyed previously, whereas Tony Iommi’s various incarnations of Black Sabbath have become progressively less successful over the years as the original members left, with the band’s name being used for every album he made with whatever backing musicians he chose to employ.

All this changed, however in 1997, when Ozzy Osbourne, Bill Ward and Geezer Butler rejoined the band and completely revitalised their fortunes, selling out arenas all over the world, releasing a platinum-selling and Grammy ward-winning live album. The band was as big as they had ever been, and many claim, with some justification, that this would never have happened if the original line-up had never reformed.

It is Iommi’s opinion that he is Black Sabbath that’s at the heart of this case, which doesn’t sit easily with the fact that he’s called his latest project “Heaven and Hell” despite the fact that all of the members were in one of the later lineups of Black Sabbath. After his action against Live Nation got underway, Iommi claimed sole ownership of the band’s name as a Trademark at the US Patent and Trade Mark Office, which Osbourne claims is illegal.

Osbourne is suing for a 50% interest in the band’s name, as well as royalties for merchandise sold since their mid-90s reunion, noting that the only reason the brand is worth so much now is because he and his team were heavily involved in revitalising it and for “quality control” over a campaign which included licensed merchandise, album reissues and touring income, mainly generated through Sabbath’s appearance on Osbourne’s own “Ozzfest” tours. Osbourne claims that he eventually hopes that all four of the original members will ultimately end up owning the rights to the name.

The legal issues behind all of this are, by turns, really simple and really complicated. Black Sabbath are no strangers to litigation, having sued their management in the mid ‘70s and being injuncted from performing until that claim was settled. Entering into a Band is entering into a “Partnership at Will” under English law, and if there is no agreement between the partners as to how profits and goodwill in the band’s name should be split, then the default provisions of the Partnership Act 1890 will apply. It’s always better to draw up your own bespoke Agreement, however, as the 1890 Act is in dire need of an overhaul. Ownership of the name stems from this theory.

Even though the Band’s name came from an obscure ‘30s horror film, the fact that the name has become associated with them enough to act as a “badge of origin” means that it can, and has, been registered as a Trade Mark.

The Courts gave valuable advice on this area of law in the 2003 case of Byford v Oliver and Dawson, which coincidentally involved the remaining members of 80’s British Heavy Metal band Saxon registering their name as a Trade Mark without the involvement of original frontman “Biff” Byford, who claimed that the Trade Mark should not have been granted on the basis that he owned a percentage of the goodwill in the Saxon name.

In this case, Oliver and Dawson had actually tried to prevent Byford from using the name and although at first instance the Trade Mark Registry ruled in their favour on the basis that each band member owned goodwill in its name and that it was simply a matter of whoever registered the name first would own the Trade Mark, Biff Byford had the last laugh.

 Byford took his case to the Court of Appeal and the late Judge Laddie found in his favour, ruling that a band was a partnership at will (i.e. one which exists as long as the members want it to) and that any goodwill attached to its name belonged to the partnership jointly rather than to one individual.

So, if the Black Sabbath dispute were to be tried in the UK, Osbourne’s claim would probably succeed following the Saxon case, which saw a change in the law up to that point. Essentially, if a band dissolves, then that original Partnership at Will comes to an end unless there is some kind of agreement to the contrary, meaning that no-one can use the name without the permission of the original members.

There would be differences here, as Iommi has been using the name for years, however the likely outcome would probably be that the original line-up of Black Sabbath owns the right to its name on an equal basis, rather than Osbourne and Iommi in a 50/50 split.

Musicians everywhere should always look into getting a Partnership Agreement drafted to deal with what happens to the band name if they split and if not, it’s clear that any remaining members will not be able to register a trade mark against the name and carry on regardless with a monopoly to stop anyone else from using it. In Sabbath’s own words, the new band may end up “Killing Itself To Live”.