Monthly Archives: November 2010

All You Need Is iTunes? – The Beatles Go Digital

It’s been a very long time coming, but it after years of bitter litigation, the Beatles are ready to release their music through Apple’s phenomenally popular iTunes platform.

Apple has a tendency to make a “major announcement” every few months, and the rumour that the Beatles are now finally making their music available for legal download has done the rounds before. What makes this different is that the announcement could have been made just at the right time for EMI and for the Band themselves.

The Beatles are one of the last major artists to release their music digitally, with many pro-downloading campaigners arguing that this has only encouraged widespread file-sharing of the Fab Four’s songs over platforms such as LimeWire and BitTorrent.

Their music is guarded very jealously – In November 2009, began streaming the Band’s music for free and sold MP3s of every one of their songs for around 15p –  much less than iTunes’ usual price per track of 79p. As many suspected at the time, Bluebeat were never authorised to sell or stream the Beatles’ music by either EMI (their record label) or Apple Corps, who publish and control how their music is used.

EMI took immediate action, with the files being taken down from Bluebeat’s website just in time for the release of all 14 of the Beatles albums on a specially-produced USB memory stick (along with artwork and video footage) at around £200 that December.

The reason why Music Lawyers are taking an interest in whatever deal is eventually done between Apple and the Beatles is that it has seemed for years as if the deal would never be done.

Apple Inc. and Apple Corps., the Beatles’ Record Label, were involved in an epic court case over Apple Inc.’s use of the “Apple” Branding. Legend has it that George Harrison came across an advertisement for Apple Computers in the mid ’70s and asked the Band’s Lawyers who was using their logo, leading to Apple Corps. suing for Trade Mark Infringement in 1978. The case eventually settling in 1981 after an agreement was reached whereby Apple Inc. would not enter the music business, and Apple Corps would not expand into the computer industry.

The truce lasted until Apple Inc. began to add basic music software to their computers in the early 90s, which led to another round of litigation with the deal being renegotiated to give Apple Corps the right to use “Apple” on “creative works whose principal content is music” and Apple Inc. the right to use “Apple” on “goods or services used to deliver such content”, but not for any physical devices.

Which was fine, until the introduction of iTunes and the iPod? Apple Corps sued for breach of the settlement agreement, but lost on the basis that iTunes merely distributed rather than created music. Apple Corps were set to appeal this decision before the long-running trade mark claim was settled in 2007, with Apple Computers now owning the “Apple” trade marks outright and licensing them to Apple Corps.

After Paul McCartney’s divorce payout to Heather Mills in 2008, there was widespread speculation that an agreement had been reach which would see the Beatles’ catalogue sold via iTunes for a rumoured payment of $400 Million, although talks broke down shortly thereafter.

The amount of money to be made through the digital sale of one of the most popular and iconic Bands of all time is potentially astronomical, even against growing cynicism that most music consumers will have already bought the Beatles’ entire back catalogue in one format or another and won’t need to do so again. However, selling through iTunes could give the Fab Four access to a whole new audience who were previously unwilling to buy whole albums or the recently re-released “Red” and “Blue” Compilations – given that the 50-year copyright on at least some of their work looks set to expire sometime in the middle of the next decade.

Against this backdrop, and given EMI’s troubled history over the past few years following the defection of major artists such as Paul McCartney and Queen as well as fraud litigation in the US between investor Guy Hands and Citigroup, who funded the recent buyout of the label, a deal with iTunes couldn’t be more timely.

The Beatles still remain one of the world’s best-selling bands and are one of EMI’s few remaining crown jewels. Recent attempts at “modernising” the Band’s catalogue have included the release of the “Beatles: Rock Band” Game and the 2009 reissue of all of their digitally-remastered recordings. This is the next logical step in the “long and winding road” of re-launching one of the most valuable catalogues in music.  The Band may not be able to buy love, but it looks as if they may buy a whole new fanbase.

The “Twitter Joke Trial” – Old Law in the New World

In one of the most significant cases involving the regulation of Social Media since its birth in the mid 2000s, a Trainee Accountant has lost his appeal against a conviction under Section 127 of the Communications Act 2003 for “sending a message of menacing character over a public electronic communications system” after posting a tweet which threatened to “blow an airport sky high”.

News of the failure of Paul Chambers’ Appeal came on the same day that Conservative MP Gareth Compton was suspended following his arrest for the same offence after posting a tweet suggesting that Journalist Yasmin Alibhai-Brown should be “stoned to death” after her appearance on Radio 5 Live.

Many Social Media commentators and Media Lawyers have been following Paul Chambers’ case very closely. It’s been hugely controversial for a number of reasons and could have serious repercussions for the Twitterati, even if the backlash against Chambers’ conviction is taken into account by the Crown Prosecution Service when similar cases arise.

Earlier this year, Paul Chambers’ travel plans and a planned meeting with another Twitter user were disrupted by heavy snowfall at Robin Hood Airport in Doncaster. Out of frustration, he posted this Tweet:

“Robin Hood airport is closed – You’ve got a week and a bit to get your s**t together, otherwise I’m blowing the airport sky high!!”

The Tweet was intended to be a joke for Chambers’ friends and “followers”. A week later, however, all humour had left the situation when Chambers was arrested at his office and his laptop, PC and iPhone confiscated by South Yorkshire Police. During the incident, which Chambers thought related to an accident involving a member of his family, he was shown a printout of his Twitter feed.

Chambers was questioned for over seven hours on suspicion of being a security threat, bailed and later charged. The incident led to his suspension from work and a lifetime ban from Robin Hood Airport.

Chambers was originally arrested under Section 51(2) of the Criminal Law Act 1977 for offences relating to making a hoax bomb threat. Securing a conviction for this offence would have been an uphill struggle given that the Prosecution would need to show that Chambers intended the Tweet to “induce in any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever”.

The chances are that many of Chambers’ followers saw the Tweet for what it was intended to be – a joke. However, even though the arrest was arguably heavy handed, the timing of the Tweet was perhaps even worse given the various states of high alert under which UK Airports have operated since 9/11.

The situation changed when Chambers was eventually charged, not under the 1977 Act, but under Section 127(1) of the Communications Act 2003 – “for sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”, an offence which can carry a prison sentence of six months.

On 10 May 2010, Chambers was convicted by Doncaster Magistrates’ Court, leading to a fine of around £400 and an award in costs of around £600. He appealed, only to have his case dismissed on every count by Judge Jacqueline Davies on 11 November.

The conviction was hugely controversial, not least because the 2003 Act was based on laws originally intended to deal with threatening or menacing telephone messages. Although there have been plenty of cases under which the 2003 act has been applied for the right reasons, such as DPP v Collins in 2006 (which dealt with racist answer machine messages left for an MP) and R v Brent in 2008 (which dealt with a Welsh blogger who posted a message to a Police Officer threatening his newborn child), many are asking whether or not this case has been not only a waste of tax payers’ money but the first sign of an alarming new approach to social media content where old law which can be applied to a wide range of conduct is being used in the new world where bringing a more serious case would lead to a more difficult prosecution –  the 1977 Act requires a specific threat and strong evidence of intent, whereas the 2003 Act does not.

Chambers’ message was not posted to Twitter’s public timeline and could have only have been initially seen by his 600 or so “followers” at the time. For anyone else to see it, one of those followers would have had to re-post (or retweet) it so that it would then show up on Twitter’s public timeline.

Even if the tweet were available generally to Twitter users, Chambers’ defence team made the very sensible point that as of May 2010, around 600 messages per second were “tweeted” on the platform. The odds of his ‘threat’ actually being seen by an appreciable number of people were, to say the least, small. The original district judge in Paul Chambers’ case chose not to dwell on this point and having decided that eh tweet was at least “menacing”, convicted and fined Chambers.

The Appeal Judge was similarly unimpressed, refusing requests to cut Chambers’ sentence to an absolute or conditional discharge and referring to his denial of appreciating the implications of his Tweet “incredible”. Going on to find that Chambers had been an “unimpressive witness”, Judge Davies told the court that: “Anyone in this country in the present climate of terrorist threats, especially at airports, could not be unaware of the possible consequences.”

The original tweet was found to be “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.”

The risk following this case is that any similar message to Chambers’ on Twitter or any other Social Media platform, whether intended to be taken seriously or not, could now very easily fall under the 2003 Act’s definition of “menacing”. Any number of Social Media users and potentially the employers of Social Media users who tweet in their name could now face prosecution.

A day before Chambers’ appeal hearing, MP Gareth Compton was arrested for the same section 127 offence, made worse by the fact that his comments were seen as racially aggravated. This is a clear indication that the Chambers case is very likely to be the start of a series of similar cases, rather than a one-off.

The Communications Act 2003 was drafted to deal with new technological threats not covered by existing legislation. Social Media was a twinkle in the eye of the web when the 2003 Act was drafted, and this is just another example of old law being used as a “one size fits all” solution to a new environment without boundaries and where any opinion or content can be shared with the world as soon as it is thought of. Ultimately, the CPS will always need to decide whether or not a prosecution is in the public interest – in Compton’s case it is much easier to argue that point.

The Chambers conviction goes against everything that Social Media stands for as far as the free exchange of opinion and content is concerned. However, the 2003 Act is, apparently here to stay and although Stephen Fry has famously offered to pay Paul Chambers’ fine and legal costs, the genie of criminal risk in the Social Media world is now very much out of the bottle. Both individual and even corporate members of the Twitterati can’t afford to ignore it.

The moral of the story? Think before you tweet and remember that offline rules will still apply to your online life. If you don’t believe me, ask Paul Chambers.

Divine Inspiration or Simple Plagiarism?

Looking around the popular media landscape, you may well be forgiven that genuinely new ideas are in pretty short supply, whether in music, film, television, fashion or even architecture. It’s probably true. For years, the music industry has railed against obvious imitators of major acts that have gone before them – Oasis were more than heavily influenced by the Beatles; Led Zeppelin are argued to have lifted entire songs from their blues heroes.

What many of these acts will tell you is that there predecessors were mere influences on them, rather than a springboard for them to use existing creativity to launch their new career whilst going about the real work of finding their own sound. The idea of a new “work” of art being a sincere tribute to an existing piece is nothing new, and the Courts have so far been willing enough to allow for new creativity to be “inspired” by what is already in the public domain.

However, the issue of where the lines are drawn between inspired creativity, paying tribute, outright plagiarism and actual copyright infringement is not always a straightforward one – the problem is in any event made even more complicated by the popularity of viral videos and other User-Generated Content such as mashups which build on an existing work to create something new. There’s a strong argument to suggest that this should be allowed not only to happen, but to flourish – it could well afford a whole new lease of life to an artist in a new and evolving medium.

The arguments were rehearsed very recently after a parody of Jay-Z’s ‘Empire State Of Mind’ was posted on YouTube and was then quickly removed after a complaint of copyright infringement from EMI Music Publishing, Jay-Z’s publishers.

‘Newport State Of Mind’, by director MJ Delaney, was viewed over two million times in two weeks by visitors to YouTube and celebrates life in the Welsh city. It was successful enough for Welsh rap act Goldie Lookin’ Chain to record their own version, ‘You’re Not From Newport’, after claiming that Delaney’s video suffered from “a lack of local knowledge”. Their version may still be online but Delaney’s was quickly removed, scotching plans to release it as a single.

Copyright is infringed when a ‘substantial part’ of an original work is either copied in its entirety or used to create another without permission from the Copyright owner, either as a main element around which the new work is based or even as an incidental part. In this case, there are three or four works which Delaney could have infringed in putting together the parody – the ‘Empire State Of Mind’ video, the sound recording of the song itself, its lyrics and its music. Dependent upon how the original copyright work has been used, then a number of defences are available to alleged infringers, one of which is parody.

Parody is, however, a notoriously difficult defence to run. Any parody of an existing song will infringe the copyright in the original if it makes ‘substantial’ use and unless it falls within the ‘fair dealing’ provisions of the Copyright, Designs and Patents Act 1988. These allow the use of copyright works for certain specific purposes, the most obvious in this case being for the purpose of criticism or review, provided that the part of the work used (and theoretically the parody) contains a ‘sufficient acknowledgement’ referring to the original.

The general rule is that the more of the original copyright work which the parody uses, the harder it is to argue that it doesn’t infringe. ‘Newport State Of Mind’ uses a virtually identical melody to Jay-Z’s original even though the lyrics are very different, and it’s probably this line of attack which EMI have used to get the video removed. Had the tune been substantially different, then it may have been easier to defend.

This is the essential legal problem with parodies and “tributes” – they need to be close enough to the original to be recognised by their audience as based on the original in the first place, which means that they will almost inevitably infringe copyright. Even though some cases have argued that parodies, re-mixes and other subsequent uses of copyright works contain enough original thought and creativity to be recognised as ‘works’ in their own right, the position was nowhere near clear enough for this particular parody to be worth the risk.

YouTube had to act quickly to avoid any action being taken against them (they’ve only recently been involved in a very high-profile copyright dispute with Viacom in the US). According to the Electronic Commerce (EC Directive) Regulations 2002, third party video websites will escape liability for copyright infringement provided that they have no actual knowledge that the content in question infringes and that they act ‘expeditiously’ to remove it. If not, they may be held liable along with the actual infringer. The usual approach is to remove the content first and investigate infringement claims later, eliminating the risk as far as possible.

A popular parody or tribute is likely to make its way around the web extremely quickly, and although most sites will (and should) operate effective ‘take down’ procedures; the chances are that some copies will still remain available. EMI’s real loss here, however, was probably to their reputation.

If there is a real need to clamp down on infringement, such as when copies of entire albums or films are made available through torrent sites without permission, then urgent action to deter further infringement will almost certainly be necessary to avoid damaging any ongoing revenue streams generated by the original.
In this case, however, Jay-Z’s fans and the general public were split on whether his complaint was justified morally (even though it was legally) and his reputation may suffer, as Prince found out when he threatened copyright infringement proceedings against a number of fan sites in 2007. Of course, had Delaney sought permission from Jay-Z before posting the video online, he would have had a defence to an infringement claim and possibly even support from an international superstar.

Although copyright in general has been due for reform for well over 20 years, the only way to be sure of avoiding an infringement claim is to get permission from an original artist before further use is made of their work, especially if the inspiration is obvious.

That said, it’s very important to remember that in this case, the only reason why EMI and/or Jay-Z had the law on their side was the fact that the melody in question was copied note-for-note from the original. What copyright actually protects is not the idea or concept behind a creative work, but the expression of that idea – often referred to as the idea/expression dichotomy.

The leading authority on this point was, unsurprisingly, the 2007 case of Michael Baigent and Richard Leigh v The Random House Group Limited – the “Da Vinci Code” trial.

In this case, the Court of Appeal found that the material which Dan Brown allegedly copied in “The Da Vinci Code” from Baigent and Leigh’s “The Holy Blood & The Holy Grail” did not amount to a substantial part of “Holy Blood & Holy Grail” because it was on the “ideas side” of the dividing line between ideas and expression, and was at too high a level of abstraction to give rise to a claim for copyright infringement.
Baigent and Leigh argued that Brown had copied the “central theme” of their book, dividing it into 15 parts of which Brown had taken 11. The Judge found that this was not enough, and that the “central theme” upon which the case was argued was not actually present in “Holy Blood & Holy Grail”, stating that it was “not enough to point to ideas or facts that exist[ed] in the Central Themes that [were] to be found in HBHG and DVC. It must be shown that the architecture or structure [had been] substantially copied.”
The use of information, facts and some theory from “Holy Blood & Holy Grail” in “The Da Vinci Code” was not enough to constitute a “substantial part” simply because it had took effort to compile the research which allowed the book to be written and were too generalised to amount to a copyright work which could be protected. However, had large tracts of text been copied from “Holy Blood & Holy Grail”, then the result may have been very different.

So, ideas may well not be new, but the way in which they are expressed can be. Different films or novels can be based on similar events, and new work can be inspired by what’s out there already. What this doesn’t mean is that it’s open season on existing material – the line remains blurred and such shades of gray tend to be where complicated and expensive legal cases thrive. If in doubt, it’s always better to ask an original author for permission rather than forgiveness.

There is, however, still no monopoly in an idea. While this remains the case, passing “go” and collecting your £200 or more is still an option, as is staying “out of jail”.

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Ask Jeeves – Stephen Fry Quits Twitter (Again)

Although it seems like the majority of celebrities are now using Twitter to reach new audiences and find ways to reinvent themselves few have become as synonymous with tweeting as Stephen Fry, often referred to as one of the most popular and influential members of the “Twitterati”.

An early adopter of the micro-blogging service, Fry has become an icon in the Social Media world, lending his support to developing stories such as Paperchase’s very public dispute with the artist “Hidden Eloise” and the “Twitter Joke Trial”, which saw a Trainee Accountant from South Yorkshire prosecuted over a post in which he threatened to “blow (Robin Hood Airport) sky high.”

His comments have not, however, always been welcome. This morning he was forced to remove behind-the-scenes pictures taken on the set of the latest “Harry Potter” movie after uploading them last week , presumably under pressure from studio Warner Brothers. When asked the question by one of his followers, he would only reply – “Your words, not mine.”

In July last year, he admitted to illegally downloading the series finale of “House”, in which his former comedy partner Hugh Laurie stars, going on to say that he was “against cynical bootlegging but I work in a very mollycoddled, overpaid business”, and “Hope I’m not misunderstood. Such a pity if I get misrepresented as a ‘help yourself and be a pirate’ advocate …”.

It was the misinterpretation of his posts that led to what many thought would be the end of Fry’s love affair with Twitter in November last year when, after being referred to as “boring” in a post by Birmingham Tweeter “Brumplum” that Fry first threatened to give up using the website, sending the message that he ” may have to give up on Twitter. Too much aggression and unkindness around.”

Fry’s followers reacted quickly, with support and condemnation in pretty much equal measure. The romance was, however, back on again later that day, with this posting: “Arrived in LA feeling very foolish. Wasn’t the fault of the fellow who called me ‘boring’, BTW. A mood thing. Sunshine will help. So sorry.”

Now, however, Fry apparently really is ending his relationship with Twitter, after being apparently misquoted by the Observer stating that the only reason women slept with men is that “sex is the price they are willing to pay for a relationship”.

Fry’s response to the bemused and highly critical reaction from the national press to his comments was: “So some….paper misquotes a humorous interview I gave, which itself misquoted me and now I’m the Antichrist. I give up.” His apparently final message is “Bye bye”.

Much of the criticism leveled at Social Media recently refers to its apparent “dark side”. It’s true that there is a huge amount of potential negativity amongst any audience and especially in those who are, like many users of Twitter, highly motivated to make their voice heard. This can be both a good and a bad thing, as seen in the very public Social Media “fails” of Trafigura and Nestle.

However, as much as Stephen may have found the comments hurtful and feel slighted by the press’ reaction to his comments on marriage, he above all people should know exactly how useful Twitter and other Social Media platforms can be in launching, maintaining and rebuilding a personal “brand”.

He should also be very much aware that if you do become an early and vocal adopter of any developing communication platform, you are opening up the brand in question (and yourself) to a very vocal and constantly changing conversation. Many Social Media commentators make the point that this conversation “goes on without you”, and they’re entirely right.

We’ve very recently seen in the story involving Kanye West “following” one of his teenage fans that the instant fame which Twitter can generate in a time when even CNN and Sky News refer to comments from the “Twitterati” when reporting breaking stories or gauging public opinion is not always welcome.

As much as Stephen has been able to use Twitter to find a number of different leases on his own public life, even going so far as to become a de facto technology reporter and commentator on the Digital Economy Act, it’s hard to believe that he didn’t realise that a backlash was only a Tweet away.

Whatever prevailing opinion may prove to be on Stephen “quitting” Twitter (and it’s likely to be a little cynical, given as he has threatened to do so before), it’s important to remember that what he says tends to be very widely reported – news of his first departure was reported in the New York and Sunday Times. Even news of his being stuck in a lift broke through Twitter and became a story with a life of its own.

The moral of the story seems to be that living your life online to such an extent really does demonstrate the force behind another current argument in social Media – “the end of forgetting”. Stephen has the option of referring the Observer to the Press Complaints Commission if he was in fact misquoted, but taking action against the online community is always more problematic.

It’s interesting and probably unwise that Stephen posted behind-the-scenes photos from Warner Brothers’ “Harry Potter And The Deathly Hallows” (almost certainly in breach of a confidentiality agreement) shortly after agreeing to star as Sherlock Holmes’ brother Mycroft in the sequel to Warners’ own very successful 2009 film starring Robert Downey, Jr.

Whatever Stephen ultimately decides to do, the conversation will go on without him, and if he really does decide to give up on his hundreds of thousands of followers then he may prove to be a cautionary tale on the pitfalls of the new media landscape, where every opinion can be heard more quickly than ever, even if it’s defamatory, inaccurate or simply what you don’t want to hear.

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