Monthly Archives: October 2009

Mandelson Puts Cutting Off Filesharers Back On The Agenda

In a speech to be made later today, the Business Secretary Lord Mandelson will announce to the C&Binet Forum, a summit at which the creative industries have been debating how to deal with copyright issues in the digital world, that he intends to go ahead with plans to disconnect persistent illegal downloaders from the internet.

The announcement comes days after Culture Secretary Ben Bradshaw told the press that Lord Mandelson’s highly-controversial tougher stance on internet piracy would be “moderated” in the face of massive public opposition, including a poll from YouGov which suggested that 70% of voters would not support cutting off filesharers and high-profile musicians such as Radiohead and Shakira coming out against such action.

Mandelson’s speech will announce the measures as part of November’s Digital Economy Bill, which is expected to contain provisions that file-sharers will only be disconnected if they become serial offenders and even then after a number of other measures, such as warning letters and slowing down their broadband access. 

Even though Ben Bradshaw suggested a “moderation” of Lord Mandelson’s plans, the fact is that this announcement was pretty much inevitable.  The speech will be made to an audience containing some of the biggest names in the creative industries across Europe, who have been lobbying for tougher action to be taken to clamp down on filesharing for the best part of a year. France is taking similar action, implementing a “three strikes” regime and it’s probably only a matter of time before other measures are put in place across Europe. Intellectual Property Minister David Lammy said yesterday that a European consensus would be vital and that “If the world wants to continue to enjoy works that are protected by copyright, then the world must be a paying customer”.

The announcement will be music to the ears of the Entertainment Industry but it will continue to face opposition on a number of fronts, most vocally from Internet Service Providers such as Carphone Warehouse, Talk Talk and BT, who have warned that the system would be extremely expensive to implement and that tracking down the person responsible for filesharing on any one account would be virtually impossible as many serial downloaders are already using software which makes them virtually anonymous.

The real opponents, though, would appear to be the public. The recent YouGov survey proves this and suggests that any party which backs disconnection from the web would lose votes at the next election. What Lord Mandelson has had to do is choose from the lesser of two evils – face criticism from an increasingly powerful Entertainment Industry which sits at the heart of the government’s plans for the “Knowledge Economy” as set out in the Digital Britain report or continue with plans with the potential to weaken public support for an already-unpopular Government. He’s taken a risk on the latter, which could prove costly in an environment where social media continues to have a major and pervasive influence on public opinion. The debate will be fought most fiercely online and the recent Trafigura and Jan Moir scandals have shown how much of an effect that the comparative minority – in this case made up of many of the most vocal opponents of disconnection, many of whom make their grievances known through social networks like Twitter – can have on public opinion.

What’s also clear, however, is the fact that a minority of the public who download illegally is growing all the time, with an estimated 7 million in the UK.  

Copyright is the single most important asset that the Creative and Entertainment Industries have, as it sets out how their material can be used and distributed. The argument is that the ability to make money from creativity through this system encourages the world at large to make new material. However, copyright law is out of step with the digital age, as proven by the fact that format shifting – i.e. downloading music files from a CD onto an MP3 player – is still technically copyright infringement. Any copying and distribution of music, software, movies or other material which is protected by copyright will be, regardless of public opinion, until the law changes. When you buy a CD, the only rights you have are to listen to it in private. The fact that the copyright system provides creatives with the only real method of controlling and exploiting the material which they make available to the public means that this won’t change, even if headline-friendly opponents such as the Pirate Party would like it to.

The pressure for Mandelson to act stems from the fact that in the UK copyright is an unregistered right, meaning that there’s no central database of which material is protected, and as such the onus remains upon rights owners to take action themselves to stop infringement. Currently, this means either convincing the Police to use criminal sanctions or suing filesharers in a civil claim. The damages awarded in this kind of action would be the amount which the rights owner would make if the material was sold legally. This can be comparatively small when we’re talking about only a few music files, and when weighed up against the considerable costs of a copyright infringement claim, pursuing every infringer could conceivably cancel out any profits which record labels may make on a release. Something had to be done in the wake of technology which now means that music and other copyright-protected material can be copied and shared instantly with the whole world rather than the tape-traders of the 1980s, which saw the last major attempt to raise public awareness of the issue through the “Home Taping Is Killing Music Campaign”.

The major argument against the Record Labels, Publishers and Movie Studios, however, is that it didn’t kill content then and won’t do so now. The public still sees copyright infringement as a “victimless crime”, but Vivendi and EMI, both of whose Chief Executives spoke at yesterday’s conference, will be able to show sales figures which tell a very different story. This isn’t helped by the fact opinion remains sharply divided amongst the artists themselves. For every Lily Allen who complains that file-sharing will be the end of their career, there’s a Radiohead who remain as successful as ever. In fact, there’s real evidence to show that the real profits for the music industry over the next decade or so will be through live events, as Madonna confirmed when she signed a recording contract with her concert promoter and left a record label which she helped to found.

Until, however, the Entertainment Industry really embraces the internet and its opportunity by making as much material available for legal download as possible, the iPod generation is going to continue to look for and get their content in illegal ways. Their entire business model needs to change, and it may well be that the public turning against them for going to war against their own audience could be the catalyst for a new way of getting content out to an audience. Until then, we will begin to see cases coming before the Court where “soft targets” will be pursued as a deterrent, no matter who is in power after the General Election.

Advertisements

Be Not Proud – BNP Buys UKIP Membership Database

The British National Party is facing an investigation by privacy watchdog the Information Commissioner after allegations that it has illegally purchased a database of UK Independence Party members’ names and addresses from a “disaffected member of UKIP” for £500.

The alleged breach of Data Protection Law came to light when many of the names on that list were contacted by the BNP as part of a fund-raising drive ahead of the most recent European Elections, in which the BNP gained two seats.

The party’s controversial leader Nick Griffin is alleged to have purchased the database himself, although he has publicly denied the claim. This incident comes one week after the leaking of a list of the BNP’s own membership via the internet and his hotly debated appearance on the BBC’s “Question Time”. 

The BNP are a minority political party who is in the midst of a concerted media campaign whose aim is to try to shift them into mainstream politics and which has seen them come under fire over their use of the image of Winston Churchill and other wartime icons as part of a recruitment drive. Part of their strategy has been to cast themselves as misunderstood and the victim of what Nick Griffin has described as “a concerted anti-BNP campaign” in the media.

This story won’t help their image. The party has seen its membership leaked three times over the past few years and has regularly quoted the provisions of the Data Protection Act 1988 when the leaks occurred. It may be that this changes the landscape and erodes any momentum which they may have been gathering after Nick Griffin’s appearance on Question Time. Griffin has claimed that he has never, nor has any BNP member, ever personally purchased such a list although he does admit that some details of UKIP’s membership had been passed by former members.

Breaching the Data Protection Act is a serious matter. The Act regulates how personal data (information about a living, identifiable individual such as a name, address, telephone number etc.) can be gathered, stored and processed and contains a number of principles with which any organisation using that data must comply, including: fair processing, being obtained for a specific lawful purpose, being kept accurate and only held for as long as is necessary, and putting suitable security measures in place to ensure that the data is not misused.

It would appear here that the UKIP data has been badly misused, both by its disgruntled members and then by the BNP in contacting them to try and raise funds. This will mean that anyone named in the database could potentially sue either party for damages caused directly by its misuse or distress if the list finds its way into the press, not to mention a privacy claim. There are also potential criminal sanctions – if an organisation breaches the DPA persistently after notification from the Information Commissioner or buys information which has been obtained in breach of the principles, then it can be fined up to £5,000 in the Magistrates’ Court or face an unlimited fine at the Crown Court.

What makes this particular breach even more serious is that the data in question is regarded as “sensitive personal data” by the DPA, as it contains information which details an identifiable person’s political opinions. This is an important distinction, as a further set of principles apply. Sensitive personal data can’t be used unless these principles are followed to the letter, and usually the subject of the data will need to consent to its being used in any way. This obviously hasn’t happened here, and the timing may be very unfortunate for the BNP as the Information Commissioner is currently consulting on whether or not to impose prison sentences for breaches of the Act.

As much as a breach of the DPA is grave enough, this leak has taken place in a week where tension over the activities of the BNP is running particularly high, and many people on the list may be rightly concerned that their personal safety has been put at risk if they are linked with the BNP in any way. This may lead to the Information Commissioner taking a tougher stance than normal and the imposition of higher than usual fines, which may well cancel out the benefit of any funds which were raised by contacting the UKIP members in question. Whatever the case, this won’t help Nick Griffin’s attempts to legitimise the BNP and will probably only fuel public contempt even further.

Crackdown or Back Down?: Government’s Tough Stance On File-Sharing To Be Moderated

In the latest twist in the ongoing battle between Musicians, the Entertainment Industry, Internet Service Providers, the Government and the General Public, Culture Secretary Ben Bradshaw announced last week that the Government’s highly controversial and heavily criticised initiative to tackle illegal downloading by cutting off internet access to file-sharers will be “moderated” in the light of massive public opposition.

The Business Secretary Lord Mandelson announced a number of measures to deal with file-sharing in August this year, amongst which were proposals that ISPs should split the cost of protecting copyright on the web and, most controversially, to either slow down access or cut off persistent file-sharers from the internet as a “weapon of last resort”. The new approach, however, confirms that a Court Order will be needed before the use of disconnection as a “weapon of last resort”, which in itself would be made subject to a two-stage process, and emphasises a right to appeal so that web users are not disconnected on the basis of a “mere accusation”. 

This is a pretty big climbdown for the Government on what looks as if it will become a major issue at the next election, and this may well be what has forced their hand. A recent YouGov poll commissioned by the Open Rights Group showed that only 16 % of those questioned supported cutting file-sharers off from the web and that over 70% would not support disconnection.  This came after TalkTalk, one of the country’s biggest Internet Service Providers, successfully showed last week that a high percentage of household Wi-Fi broadband connections can be “hacked” by third parties to allow them to be used to illegally download without the owner’s knowledge and described the current proposals as “naïve” and  “lacking a presumption of innocence.”

They have a point, and although many may view Talk Talk’s actions as a PR stunt, what they have done is highlight a very real problem with the previous approach – ISPs, if asked to hand over information on who is using their network to file-share, will not necessarily be able to tell exactly who is downloading – there is every possibility that several members of a household may use one connection to the Web, as well as hackers using their connection without their knowledge. This may mean that prosecutions or civil actions may be much more complicated and therefore more costly, especially as software tools to identify users are not a reliable as they could be. Virgin ran into this problem last year when they sent out letters to various users which they suspected of using peer-to-peer services only to be told that the recipients had no idea who was responsible. Not only that, but new methods of file-sharing, such as iPod ripping, don’t actually use an internet connection. The chances are that technology will simply be too slow to keep up with them.

File-sharing became an issue in mainstream politics after intense lobbying from the Entertainment Industry to do something about the problem, which is now having a huge impact upon CD and DVD sales, rather than being an excuse for the Government to regulate for the sake of it. It’s been estimated that there are over 7 million file-sharers in the UK and the Entertainment Industry, as well as some of the Artists themselves, has been campaigning for either the Government or ISPs to intervene on their behalf to cut down the traffic in illegal files against claims that music piracy is severely limiting their ability to launch new artists and promote existing acts. ISP’s say it isn’t their responsibility, and the Government isn’t sure how to deal with theirs.

The black letter of the law remains the same: if you copy an MP3 from the web without permission from its owner, you will infringe copyright. Copyright is hugely important to the music industry as it is the main protection for an artist’s work and the main way in which record companies make money. It protects music as soon as it is recorded, and the copyright in a song or entire album belongs to either the Band or their label, giving them the right to control if and when their music is copied and made available to the public as well as allowing them to charge fees for doing so, which, so the theory goes, would encourage other artists to carry on making new music.

However, the law has not been able to keep up with the pace of technology. In the 80s, many LPs carried a piracy warning that “Home Taping Is Killing Music” as cassette recorders allowed copies of albums to be made and handed out without any control by the Music Industry under the fear that LP sales would fall if people stopped buying LPs that their friends copied for them, which they did. We are in an even worse situation now as the Music Industry is terrified of the impact that illegal downloading is having upon CD sales.

The public seems genuinely confused over exactly what copyright protects. Not only that, but the law itself is confused – technically speaking, downloading a CD to your iPod is also an infringement of copyright, although the issue of “format shifting” is being looked at in some detail. Ad campaigns for the iPod would probably be very different if they carried a health warning that using them could land you in court.

So, where next? Pretty much everyone seems to agree that the issue of file-sharing needs to be dealt with, but the issue is already fiercely dividing opinion. Even the Artists whose music is being downloaded can’t seem to agree upon what the approach should be, with Radiohead suggesting that downloading is on the rise due to an absence of good music on the radio and giving away their “In Rainbows” album via free download. On the other hand, Lily Allen took a very public stand against downloaders, claiming that she won’t make any more albums due to the problem and that new acts are no longer being signed in the same numbers due to a lack of being able to make money from them.

Even though Allen and other high-profile musicians such as Annie Lennox and the members of the Featured Artists Coalition have put the case against downloading very eloquently and very publicly, other artists such as Shakira claim that what we’re actually seeing is a “democratisation of music”. That’s an interesting word to use, as other attempts to implement a “three strikes” system of cutting off downloaders within the EU have been derailed on the basis that cutting off access to the internet is, in fact, unconstitutional. The Digital Britain Report, as well as the Prime Minister, recognised that public access to the internet will be vital to the development of the new “knowledge economy”.  The main change in approach will now be that a Judge decides when to cut off users rather than a government body.

There is also a real issue of public perception of copyright infringement as a victimless crime. Lily Allen has taken a lot of abuse due to the fact that, not only did her website contain copies of material by other artists without their permission in “mixtape” form, but she also “cut and pasted” one of her blog posts on the issue. Add to that the fact that French President Nicolas Sarkozy, a key supporter of the tougher approach, was recently accused of “pirating” over 400 DVDs and it’s easy for public opinion to turn against an industry which produces massive wealth for its members.

However, a key development this weekend saw the European Parliament give the go-ahead for member states to cut off persistent offenders. This came about after an amendment to forthcoming telecommunications legislation, which would make this difficult without a court order, was dropped. The British Government’s latest proposals on how to deal with the problem are expected over the next month or so, but whatever the outcome, this debate will run and run and it remains only a matter of time before the Entertainment Industry takes action. So far, they’ve been reluctant (at least in the UK) to take action against their customers, but even though it will probably be a very expensive case which may lead to a commercial loss for the record company which brings proceedings (as whoever they sue may not be able to pay the Label’s legal costs and damages remain limited to what the actual price for the downloaded material would be), it’s probably only so long before the first real deterrent cases appear before the UK Court.

Whatever the case, just because the proposals have been watered down, the issue isn’t going to go away. Although it will remain difficult to do so, the threat of being cut off is still very real and still a very real flashpoint of public opinion. The only real way to deal with the problem remains education of the public as to what can and can’t be downloaded and to make as much material available for legal download as possible. With a few tweaks to its business model, the Entertainment Industry could truly embrace the new technology available and open up brand new revenue streams for their artists. Otherwise, the current stand-off will only get worse.

Jan Moir vs. The World – Daily Mail Article on Stephen Gately’s death leads to record number of complaints

In the latest example of public opinion playing a pivotal role in Media Law, an article by Daily Mail columnist Jan Moir on the circumstances surrounding the tragic death of Boyzone singer Stephen Gately has led to the largest number of complaints about a single article in the history of the Press Complaints Commission.

Moir’s piece, published on 17 October, referred to Gately’s death as “strange, lonely and troubling”, before referring to the circumstances as “sleazy” and stating that  “gay activists are always calling for tolerance and understanding about same-sex relationships…. It strikes another blow to the happy-ever-after myth of civil partnerships”

The article has provoked widespread condemnation on the internet and has led to 25,000 complaints being made to the PCC over the course of one weekend, more than the body has received in total over the course of the past five years.

After the recent outrage over the Trafigura case bringing the issue freedom of the press back into the public spotlight, it would be easy to say, as some Daily Mail readers already have, that Jan Moir is entitled to her opinion, and that her freedom of expression is protected by the Human Rights Act.

However, although the press should be free to report on matters of public interest, the real issue when looking at cases like this, whether the Court or the PCC deals with it, is where you draw the line. The sad fact is that the Gately family’s legal comeback against Moir is curtailed heavily by that fact that Stephen has passed away. It’s a long-established legal principle that you can’t libel the dead, nor can they bring an action for breach of privacy. Whilst this may protect Moir and the Mail from a huge damages claim from a grieving family, it won’t protect them from the huge and growing public backlash over her comments.

The PCC have responded by saying that they will consider each complaint and then decide upon whether or not an investigation should be launched into whether the article breached the terms of its code of practice, which sets out the standards which the press expect journalists to comply with. The PCC will then look into whether or not the code has been breached and decide what, if any, sanctions to impose. If a breach is shown, then the Mail must publish any criticism from the PCC in full and in a prominent fashion.

It’s hard to see how Moir’s article isn’t in breach of a number of clauses of the code, including the duty “not to publish inaccurate, misleading or distorted information”, “to handle publication sensitively”, and perhaps most importantly here, the “duty to avoid prejudicial or prejorative reference to race, colour religion or sexual orientation”.

25,000 complaints, however, won’t change the fact that the PCC won’t usually accept a complaint from any third party who isn’t directly involved in the report in question unless there is an exceptional public interest in doing so. It could be that they feel that this case is such an exception, as they have already stated that, even if the Gately family does not make a complaint, they intend to contact the Mail after the huge response to the article in the public domain.

Moir’s response to the internet commentary about her piece claimed that she has become the subject of “what is clearly a heavily orchestrated internet campaign….I think it is mischievous in the extreme to suggest that my article has homophobic and bigoted undertones.”  She couldn’t be more wrong. What actually happened is that word of her comments got out on the internet and produced a firestorm on a number of social networks, including Twitter, which.

Twitter and the blogosphere may be home to a very vocal minority when it comes to this kind of issue, but the Trafigura scandal earlier this week showed exactly how powerful that minority can be in shaping opinion and served as an object lesson in the power of social media. Quite simply, the “campaign” against her didn’t need to be organised; it’s ready and waiting when a controversial issue comes to light, and was something which she underestimated to her cost.

Trafigura also raises another issue here; that of freedom of expression. According to the Human Rights Act, Moir is entitled to express her opinion in whatever manner she chooses and it’s hard to support the Guardian’s right to operate as a free press whilst condemning Moir. That said however, the Guardian’s piece did not breach as many PCC guidelines and was much more in the realm of public interest. Moir, for better of worse, is being seen as taking advantage of a very emotional and unexpected event. Whether this turns out to be the PCC’s opinion remains to be seen, as does whether the Twitterati’s opinion of her is really taken into account – so far, it would appear to be. Whatever the case, surely the 25,000 complaints submitted to date and the fact that some advertisers have already moved away from the Mail in the wake of the article make one thing very clear – free speech is a double-edged sword; say what you want, but be prepared to take the consequences.

In this particular case, the tragic reality is that the Gately family’s only real option is the PCC and to take some comfort in the groundswell of public support for them. Whether this case leads to reform of the PCC’s Code of Practice to allow third parties to make complaints will be the key issue, but unless you can afford to take the risk of mounting a libel or privacy action, it is still a viable method of making your grievance heard. If you can afford to take action and are in a position to do so then you should. You may find that there is a very loud and lucid online voice waiting to support you as the Guardian did when it took on Trafigura, but you should also bear in mind that, now more than ever, living in the public eye means having to deal with both sides of public opinion. That goes for both Stephen Gately AND Jan Moir.

The Trafigura Case and Freedom of Speech – Super-Injunction vs Social Media

In what could prove to be one of the most historic stories in media and more specifically social media, the users of social networking site Twitter have been almost solely responsible for overturning arguably the most notorious pre-publication “gagging order” of recent years.

The overwhelming public and media backlash against the “super-injunction” obtained by Carter-Ruck  (arguably the most highly regarded libel lawyers in the UK) on behalf of commodities trader Trafigura to restrain the Guardian from reporting on “certain parliamentary proceedings” began on the evening of 12 October, mere minutes after the broadsheet announced its inability to comment on anything about the story due to an “existing High Court Order”.

This led the online community, and especially users of the phenomenally-popular microblogging site Twitter , to begin feverishly speculating over who the apparent “gagging order” referred to. It transpired that The Guardian had been restrained from publishing details of a question raised by Labour MP Paul Farrelly due to be answered by a Minister towards the end of the week dealing with a report into an allegation that Trafgiura had dumped toxic waste off the Ivory Coast.

Specifically, Farrelly wanted to know if and how Ministers had taken steps to protect “whistleblowers” as well as the freedom of the press to publish details of the story after Trafigura successfully obtained an injunction from the High Court to restrain publication of the Report’s findings.

Reporting on the details of Farrelly’s question would never normally be challenged, however in this case the terms of the “Super-Injunction” prevented the Guardian from even reporting its existence as well as any details of the parliamentary question.  What the Guardian did say, however, was that it had been “prevented from identifying the MP who has asked the question, what the question is, which. minister might answer it, or where the question is to be found”.  

The Guardian’s legal team tried to negotiate the alteration of the terms of the injunction so that the story could be published, but Carter-Ruck refused, leading to the paper’s front-page statement that they couldn’t fully report on the ministerial question. This sent the internet rumour mill into overdrive and in under an hour, it was widely reported across Twitter that the ministerial question related to Trafigura, and the full text became available after a Human Rights activist found the information on a Government Website.

Since then, condemnation of the “Super-Injunction” and Carter-Ruck has been overwhelming and the issue of whether or not such orders unduly prohibit freedom of speech has been brought firmly back into political and public debate.

This is being claimed as a historic victory for freedom of speech and cited as an example of the power of the internet (specifically Twitter) against an attempt by big business to stifle the press’ freedom of expression, and rightly so. What this story has ironically become is an object lesson in reputation management and knowing when and how to take action.

It’s a long-standing and fiercely-protected precedent which allows the press to report upon anything that MPs say or do. Add to this the relatively obscure provisions of the Parliamentary Papers Act 1840 and the “Twitterati” had all they needed to get to work on uncovering what was behind the controversy. A website publishing details of all parliamentary questions and a hunch that Trafigura may be behind the injunction was all it took to get the full details of the story out to the Twitter community, with the terms “outrageous gagging order trafigura dumping scandal”, “ruck” and “guardian” becoming the three most searched-for phrases on the site within hours. Commentators ranging from Nick Clegg to Stephen Fry lined up to condemn the injunction and after a few hours, it was rendered pretty much useless.

The “Super-Injunction” is a fairly new and very rarely-granted order. Orders effectively “gagging” the press and restraining them from reporting on a story either on the grounds of privacy or more often to stop a libellous article making its way into the public eye and damaging a reputation are nothing new and often justified. There would usually be no issue with reporting the fact that an injunction had been granted and keeping the actual details of the story under wraps. However, a “Super-Injunction” goes far further, by stopping the press even reporting the fact that an injunction exists as well as keeping the details of who has applied for it secret. The only comment which the Guardian could make was along the lines that they had a story which they couldn’t report, and couldn’t tell its readers why.

Usually, “Super-Injunctions” are granted on the basis that they will be used to protect an individual’s privacy, but this case is obviously very different and probably the reason why there’s been such a backlash. Media law draws a distinction between the publication of material which is in the public interest and material which is simply interesting to the public. Amid the scores of cases which fall in the latter category and privacy claims being deployed to protect the private lives of celebrities, real news does sometimes appear to get lost in the shuffle although it may well be of genuine public interest. If that’s the case, then the Court, when considering whether or not to grant an injunction to restrain publication on the grounds of privacy, libel or otherwise, has to weigh up two competing sets of rights – an individual’s rights (i.e. privacy and not to have their reputation ruined) and the press’ right to freedom of expression. Although recent cases may have given the impression that the freedom of the press is under attack from lawyers and most notably Judge Eady, the Court is usually loathe to stamp out a story unless it absolutely has to and Trafigura would have had to present a very strong case to get an injunction in the first place.

The issues for freedom of the press here are impossible to ignore and will be debated tomorrow in Parliament, although even this has been subject to a letter from Carter-Ruck to every MP stating that the debate should not go ahead as the case to which the original injunction refers is still ongoing. The House has, however, so far refused to comply.

Besides the obvious implications for big business being able to effectively “gag” the press from reporting on topics which they may find objectionable or sensitive, maybe the biggest lesson to be learned here is for the Lawyers. Getting an injunction to restrain publication can be absolutely the right thing to do in some cases and remains a perfectly justifiable legal remedy against an increasingly intrusive media. However, in this case what Carter-Ruck appear to have done is take a sledgehammer to crack a nut. The very fact that they represent a litigious client and that they have been able to obtain an injunction, let alone a “super-injunction” to stop the details getting out of a story with such a huge human interest factor almost dares the public to try and peer behind the curtain to see what’s really going on.

Fighting your client’s corner is always admirable, but to do so in such a manner as to severely damage the original legal and commercial objective, in this case keeping Trafigura’s reputation intact, by turning what had been a story which the Press had reported on to a limited extent into a matter of huge public interest is perhaps the ultimate lesson in knowing when to take a case too far. Libel cases are often used to maintain reputation, especially in a world where social media and online sources make the concept more fragile than ever, but in this case obtaining such a draconian injunction has not only affected Trafigura’s reputation but also Carter-Ruck’s. Writing to every member of the House of Parliament to clamp down on political debate over the issue has made it even worse.

But it’s the online world that can take credit for the resulting collapse of the “super-injunction”, rather than the press alone. Prevailing reputation management theory suggests that it’s far better to engage in public discussion with your stakeholders when a story breaks rather than simply trying to stamp out any trace of it, whilst recognising that, in some cases, you will have to sue. If Trafigura had any mitigation over the ivory coast incident, then the chances are that it will be drowned out by the tide of criticism from, at least initially, the users of Twitter alone. Recently major manufacturers have used the site strategically to deal with negative publicity to great effect, probably due to a more transparent and collaborative approach. That’s not always appropriate if the story in question has no basis in fact, is biased to a ridiculous extent or affectws your private life but the real issue here is that, no matter how hard you try to keep details of this kind of issue secret, the online community will usually always find a way to get the facts (or at least one user’s interpretation of them) out to the public.

In this particular case, the details of the parliamentary question may well have been just another news item without the attention drawn to it via the injunction. In a world which is increasingly connected and in against a background of Web 2.0 technology being used to create real “citizen journalism”, injunctions (often called the nuclear weapons of the legal profession) should be used with care. They should, however, still be used in the right circumstances, such as when a story being published could lead to the details of a private life being laid bare or a reputation being ruined beyond repair – no amount of damages could compensate for this, which the Court recognises.  

The press should remain free, but those upon whom they report should have recourse to the law when that freedom is abused. That said, what this case has tried to do is to stifle debate in the Commons on a matter of very real public interest, and that should never be encouraged.

Coldplay v Satriani-It’s good to “Talk”

Coldplay v Satriani-It’s good to “Talk”

After a high-profile dispute which looked as if it were heading towards a Trial, Coldplay have settled the copyright claim brought against them by legendary guitar player Joe Satriani.

Satriani issued proceedings against the Band alleging that “Viva La Vida”, one of their most successful and iconic hits as well as the soundtrack to Apple’s most recent ad campaign for the iPod, was based upon his instrumental “If I Could Fly”.

Coldplay, however, denied any connection between the two and told the media that any similarity between the song was a surprise to them, as well as making it very clear that the claim would be defended as far as necessary.

Steve Kuncewicz, Intellectual Property, Media and Entertainment Lawyer at Ralli in Manchester, had the following comment on the settlement:

“Documents from California’s Central District Court show that the Satriani’s case against the British band was dropped “upon stipulation”. This suggests that a deal has been done between the parties, which may or may not inlcude a payout in Satriani’s favour.

Before leaping to the conclusion that they should have fought the case if they didn’t copy the song, it’s worth bearing in mind what Coldplay had to lose if the case went against them.

The case began in December last year, with Satriani, claiming damages and “any profits attributable to the alleged copyright infringement”.

This is what could have been claimed in the English Court had the case been fought over here.

If copyright infringement can be demonstrated to the Court, then the usual award is either damages for the royalties which the Artist would have made if they had done a deal with whoever has allegedly copied their work or an “account of profits”. This would see all of the profits made from such a hugely iconic song handed over to Satriani.

As any good litigator will tell you, taking a case to trial is a calculated risk. In fact, pursuing infringers of your copyright and deciding how far to push a case is a very complicated exercise in risk management. Any Judge, no matter how skilled, will make a judgment based on the case before him and there are very few cases where you can guarantee that they will find in your favour.

Settling this case is very sensible, as music Copyright cases are notoriously tricky and the test for whether or not a song has been copied-whether or not a “substantial part” of the original has been used, is a matter of fact in each case.

Unless the songs in question really are identical or contain a sample of another which hasn’t been cleared, and you’re willing to gamble the profits you make on a well-known composition, then it may be a risk not worth taking, especially in an industry where it’s increasingly difficult to turn a profit.

Interestingly, Coldplay asked for a Jury Trial. This wouldn’t happen in England and was even more risky as members of the public would make the final decision on whether the Band really had copied the song.

The last few years have seen some genuinely scary precedents, all starting when George Harrison was found to have “subconciously copied” an earlier dong in “My Sweet Lord” and The Verve making very little profit from “Bittersweet Symphony” after failing to clear a sample from the Rolling Stones, who ironically found themselves accused of the same thing by kd Lang shortly thereafter.

That said, if you are an Artist and your work has been copied, you may not be able to afford not to take action as a deterrent against further copying. You should always be willing to do so, but always willing to know how far you are willing to push your case and when to consider settlement. If not, in the words of the Clash,you may fight the Law, but the law may win.”