CMU Daily 05.05.21: Cox goes legal over BMG's takedown notices and an old email address, More than 75% of the UK's remaining festivals could cancel this month without government action

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Cox goes legal over BMG's takedown notices and an old email address
For all us fans of copyright safe harbour legalities - and you're definitely in that gang - the big bust up between BMG and US internet service provider Cox Communications was a key case.

Yes, it ultimately ended in an out of court settlement after appeals judges ordered a retrial on the basis of some tedious technicalities. However, the same appeals judgement pretty much upheld the conclusion of the lower court.

That being that Cox had a deliberately shoddy system for dealing with repeat infringers among its customer base and - as such - should not enjoy any of that safe harbour protection under US law. Which in turns means it can be held liable for the copyright infringement of its users.

On the back of that conclusion the majors got their lawyers on the case and won a neat billion dollars in damages. A number of other US ISPs are also now fighting similar litigation from the major record companies and their US trade body.

But today we're here to note that BMG v Cox is back on. Well, this time it's Cox v BMG. Because the net firm has gone to court to formally moan about the takedown requests that the music firm - and its anti-piracy agency Rightscorp - continue to send to Cox HQ relating to infringing content on its networks. Well, technically they're moaning about the email address Rightscorp is using.

"In 2017, Cox changed the address for its registered agent from abuse@cox.net to CoxDMCA@cox.net", the new lawsuit states. "Cox updated its website and the directory on the US Copyright Office's website to reflect this change. Immediately thereafter, virtually every notice sender except for Rightscorp began to send notices to the updated address".

"Despite Cox's public notice, and despite multiple subsequent requests and warnings, Rightscorp persisted in sending on behalf of BMG tens of thousands of notices to Cox's old address", it goes on. "As Cox advised defendants on numerous occasions, including through outside counsel, Rightscorp's actions rendered the notices invalid and unactionable as a matter of law".

"Defendants' brazen and deliberate non-compliance with the procedures set forth by the [US Digital Millennium Copyright Act], in the face of Cox's repeated requests, smacks of tortious misconduct", the lawsuit then claims. "Indeed, rather than comply with Cox's procedures like other rightsholders - so that defendants' notices would be processed and forwarded to Cox's subscribers, potentially stemming the claimed infringement - defendants knowingly and intentionally continue to send Cox notices at an invalid address".

But why oh why would they do that? "It is clear that defendants have persisted in this blatant non-compliance in a calculated effort to manufacture evidence to support a massive secondary infringement action against Cox. Plainly, defendants intend to claim that Cox's decision not to process these invalid notices renders it ineligible for the DMCA safe harbour protections and, therefore, subject to potentially astronomical monetary damages".

"Defendants' conduct puts Cox in an impossible position", the ISP claims, "giving it a Hobson's choice of either not processing the notices and facing a risk of massive secondary liability claims based on an allegedly defective process for handling notices under the DMCA, or needlessly incurring costs and tying up computing resources by processing the notices outside of its established procedures, bypassing Cox's systems (in which Cox has invested millions of dollars) for handling notices of alleged copyright infringement".

With all that in mind, Cox wants the court to confirm that all takedown requests sent to the old email address are invalid, and "an order enjoining defendants from continuing these abusive practices, monetary damages, and any other such further relief that the court may deem just and proper".

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Nirvana sued over circles of hell image
Nirvana have been sued by the granddaughter of a British man who created the circles of hell image that has been used on the band's merchandise since the 1990s. She claims that that use was unlicensed and therefore infringed her grandfather's copyright.

The image was seemingly created in the late 1940s by CW Scott-Giles, depicting Upper Hell as described in Dante Alighieri's 'The Divine Comedy'. Scott-Giles' image then appeared in a Dorothy L Sayers' translation of the fourteenth century poem.

Jocelyn Susan Bundy says that she is the sole surviving relative of Scott-Giles, who died in 1984, and therefore the successor-in-title to his copyright. That may or may not be true, but why is she only suing now over Nirvana's use of the image since the 1990s?

Well, her lawsuit claims, she only became aware of that use in January this year, subsequently discovering all the merchandise on which it has appeared over the years.

Her legal filing also claims that Nirvana have in the past attributed the copyright in the image to the band themselves, variously claiming that Kurt Cobain created it and/or that the illustration is in the public domain, ie no longer protected by copyright.

"Nirvana and some of the other defendants have maintained this position in their responses to plaintiff's continuing requests to cease their wrongful conduct in the US and abroad", the lawsuit adds.

As well as the band's own company, Live Nation Merchandise LLC and Silva Artist Management LLC are also named as defendents on the lawsuit.

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Music industry welcomes voluntary efforts of YouTube and Facebook to combat online piracy
The music industry has welcomed a number of polices and initiatives introduced by YouTube and Facebook to help in the fight against online piracy, most of which have stemmed from a series of roundtable discussions organised by the UK government's Intellectual Property Office since 2018.

Record industry trade group BPI - as well as other creative industry groups involved in those roundtables - have highlighted a number of changes made by YouTube and Facebook that should help rightsholders to better enforce their rights online.

For example, both platforms have introduced new policies to stop the posting of content that specifically aims to help people access copyright infringing content online, for example by explaining how to access websites that have been blocked by internet service providers on copyright grounds.

Both companies have also discussed their respective rights management systems - so YouTube's Content ID and Facebook's Rights Manager - and their repeat infringer policies, seeking to ensure that copyright owners know what is currently possible, and identifying areas where content companies would most like refinements.

Meanwhile, Facebook has introduced new policies to try to stop links to piracy services appearing on its platform, and to ensure that suggestions in its search box don't encourage people to search for infringing content.

On a more technical front, YouTube has "agreed to a significant increase in API allowances to enable rightsholders to scale their IP enforcement activities and more quickly remove infringing links at scale" and "Facebook is in the process of beta-testing a similar API". So that's fun. Especially for fans of takedown notices.

Of course, for the copyright owners involved in these roundtables there is still much work to be done by these and other internet companies in the never ending fight against piracy. The BPI et al nevertheless acknowledge that some progress has been made as a result of these voluntary measures introduced by Facebook and YouTube.

BPI boss Geoff Taylor says: "There remains much work to do to reduce online infringement, which continues to hinder the growth of the UK's world-beating creative industries, but I would like to thank Facebook and YouTube for their positive engagement and their efforts to address many of the issues brought forward in the roundtable".

As for what other internet companies might want to follow Facebook and YouTube's lead, well, the initiatives outlined today stand in contrast, Taylor adds, to the fact that "no significant progress has been made with Twitter", which "underlines the urgent need for government to ensure that all online platforms take a responsible approach to dealing with content".

And now some words from Facebook and YouTube, just for fun...

Nicola Mendelsohn, VP EMEA at Facebook: "The collaborative social media roundtable process facilitated by the IP Office has proven to be a powerful model for educating stakeholders on Facebook's systems to address piracy and for developing new policies that meet all stakeholders' needs. We are grateful to the IP Office for its leadership and the earnest and solution-oriented manner in which the creative rightsholders approached the roundtable discussions".

Dan Chalmers, Director of YouTube Music EMEA: "YouTube seeks to lead the industry in developing programmes, policies and technology to fight online piracy and we are very proud of receiving an Emmy for our cutting edge Content ID system. But as pirates switch tactics, it is important that we collaborate closely with rightsholders and experts like the IPO to ensure that our approach and investment are as effective as possible. We value the leadership taken in the UK to facilitate industry collaboration and look forward to continuing progress in this space".

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More than 75% of the UK's remaining festivals could cancel this month without government action
The Association Of Independent Festivals has warned that a quarter of UK festivals have now cancelled their 2021 editions due to government inaction on insurance, with more expected to follow.

Of all the UK festivals with a capacity of more than 5000 that were scheduled to take place this year, 26% have now cancelled, says the organisation. The AIF estimates that this leaves 131 festivals left standing, but warns that as many as 76% of these could be called off this month without urgent action.

With no cancellation insurance available on the commercial market, festivals headed into the 2021 season without a safety net. Although the UK government's current schedule for lifting COVID restrictions in England means that festivals in July and beyond should be able to go ahead, there is nevertheless a chance that those restrictions will extend. Without insurance, many festivals can't afford the risk that such an extension would force a last minute cancellation, at the point when most of the their production costs have already been incurred.

For months, both the industry and Parliament's culture select committee have called for the government to offer state-backed insurance for events that were planning to go ahead this year. This would mean that planning could continue, while ensuring that, if the schedule for lifting COVID restrictions continues as expected, a summer of festivals would be ready and waiting to go ahead.

However, despite ministers saying they wanted a "summer of fun" once COVID restrictions lifted, they have so far refused to provide any protection to event organisers, despite lower cost and lower risk alternatives to full on state-backed insurance also being proposed.

AIF also reveals that the number of events scheduled for September and October has now doubled since earlier this year, showing that - while some festivals have cancelled - others have pushed back, hoping that even if COVID restrictions extend, they'll be lifted by then. Although, of course, there is still a level of uncertainty even for those festivals.

Many of the events that have announced their cancellation in recent weeks have directly blamed the lack of government support for the decision.

When it announced its cancellation last month, Boomtown Fair said: "Anyone putting on an event this year will be doing so without the safety net of insurance to cover them should COVID prevent them from going ahead in any capacity. For an independent event as large and complex as Boomtown, this is a huge gamble of up to an eight figure sum and the financial risk is simply too high".

AIF says that there is now an urgent need for the government to reverse its decision on a state-backed insurance scheme. It adds that the majority of festivals with dates in July and August have payment deadlines for substantial and unrecoupable costs by the end of this month. As many as 72% say that if they do not go ahead this year, they will not be able to return in 2022 without some kind of financial support.

"For months now, we have been warning government that the UK's 2021 festival season would be quickly eroded if they failed to back their own roadmap out of lockdown and act on COVID related cancellation insurance", says AIF CEO Paul Reed. "That danger is now coming to pass, with over a quarter of festivals having cancelled already this year. It's now red alert for the UK's festival season. By the end of this month, 76% of the remaining festivals planned for 2021 could very quickly disappear from the calendar".

"It is hugely positive that there was a festival pilot as part of the Events Research Programme last weekend, and this could be an important milestone in the safe return of festivals", he continues. "But, without a safety net, independent promoters cannot begin to confidently invest in their events. They currently have no protection should a COVID-related issue result in the cancellation of their festival. If government-backed insurance is off the table, festival organisers deserve to know what government proposes as an alternative to prevent the widespread collapse of the festival season".

The live industry has previously proposed some sort of contingency fund for festivals, if insurance is off the table. Meanwhile, the culture select committee recently said that, while an industry-wide state-backed insurance remains its preferred position, surplus funds from the Culture Recovery Fund could be used to support festivals. It also proposed that more events be included in the government's Events Research Programme, which is testing the safety of full scale events. The handful of events currently included in that programme are covered by government insurance.

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All new Wasserman Music launches Twitch-based live-streaming series
Newly launched Wasserman Music - created through the acquisition of the music division of talent agency Paradigm - has announced a partnership with Twitch which will see a series of shows livestreamed from various venues in the US and UK.

Things began last night with a performance by Perfume Genius at the Lodge Room in Los Angeles. In June and July there will also be shows coming from Lafayette in London, with 20 shows planned in total under the banner There Is Light. Each show will also feature a support act and a moderated Q&A with the artists.

Commenting on the project, Wasserman Music's SVP Of Marketing, Sam Alpert, says: "In creating a branded series, our goal was to find turnkey opportunities for artists within the livestreaming space, while also creating a destination for the indie music community to hear some of their favourite live acts and discover new ones from all over the world".

"With the launch of the There Is Light channel, Twitch is providing the perfect medium for artists to engage with their fans and the Twitch community", he adds, "and we are looking forward to building it with them throughout this series and beyond".

Meanwhile, Will Farrell-Green, Head Of Music Content at Twitch, adds: "Independent artists have created some of the strongest and fastest-growing communities on Twitch. These artists deeply understand the impact of building and connecting with a loyal fanbase".

"Our partnership with Wasserman Music will give indie artists a dedicated home on the service", he goes on, "where they will have the opportunity to introduce their music to Twitch's global audience and interact with fans on a more personal level".

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Tegan & Sara's high school memoir to be turned into TV series
Tegan & Sara have announced that their memoir, 'High School', is being turned into a TV series.

The show is being made for Amazon-owned ad-supported video streaming service IMDb TV. Based on the twin sister pop duo's 2019 autobiography, the show promises to be a coming of age story "told through a backdrop of 90s grunge and rave culture". It will be produced by the duo alongside Clea DuVall, in partnership with Amazon Studios and Brad Pitt's Plan B Entertainment.

In a statement, Tegan & Sara say: "We are incredibly excited to be working with Lauren, Ryan, and the fantastic IMDb TV team to bring 'High School' to life and apologise in advance to our mother for forcing her to relive this period of time with us again. We've made casting suggestions on her behalf to the incomparable Clea DuVall and our wonderful partners at Plan B".

DuVall adds: "I am grateful to Plan B, Amazon Studios and IMDb TV for their partnership in bringing Tegan and Sara’s beautiful and complex memoir to life".

No transmission date has yet been announced for the show.

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Britney Spears calls documentaries about her life "hypocritical"
Britney Spears has commented after another new documentary about her life was aired, accusing the makers of the programme of being "hypocritical".

Writing on Instagram, she said: "2021 is definitely way better than 2020 but I never knew it was gonna be like THIS! So many documentaries about me this year with other people's takes on my life. What can I say… I'm deeply flattered! [However] these documentaries are so hypocritical - they criticise the media and then do the same thing? Damn".

The post followed the airing of new BBC documentary 'The Battle for Britney: Fans, Cash And A Conservatorship'. It covers similar group to the recent US film 'Framing Britney Spears', although puts more emphasis on the #FreeBritney movement, which calls for an end to the legal conservatorship the musician has been under since 2008.

The new film features a number of new claims though. One, made by Spears' former make up artist Billy Brasfield, is that the singer does not actually control her social media accounts. That would spoil a strongly held theory by some fans that she is sending secret messages asking for help through her social media output.

But in the new post, she says: "I don't actually talk to Billy B AT ALL, so I'm honestly very confused. This is my Instagram".

Following much public discussion about the previous 'Framing Britney Spears' film, Spears commented on it in March, saying that she had been "embarrassed" by clips she had seen of the documentary. She also added that she had "cried for two weeks" about it.

We can expect to hear more from Spears in the coming weeks. Next month, she is due to speak at a court hearing discussing that conservatorship - something she has rarely done in the last thirteen years. This follows much controversy over her father's role in the conservatorship, and his attempts to regain more control after a period away from directly managing his daughter's affairs.

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The Weeknd still boycotting Grammys, despite ditching of nomination committees
The Weeknd has said that he still won't submit his music for consideration by the Grammy Awards. This despite a number of rule changes at America's big awards bash that almost entirely do away with the "secret committees" that prompted him to boycott this year's event.

Last week, Grammy organiser the Recording Academy agreed to remove nomination review committees from the shortlisting process in all but a number of what it terms 'craft categories' - awards for things like package design and immersive audio, where a smaller number of Grammy voters have specialist knowledge.

Other than that, the decision of the Academy's voting members will be final in almost all categories, including the 'big four' of Record Of The Year, Song Of The Year, Album Of The Year and Best New Artist.

Speaking to Variety this week, The Weeknd said that the removal of the nomination review committees was "an important start", but that it did not restore his trust enough for him to want to begin entering his music again. He, of course, hit out last year when he failed to receive any nominations, accusing the whole event of being "corrupt".

Despite sweeping changes to the rules, he said: "The trust has been broken for so long between the Grammy organisation and artists that it would be unwise to raise a victory flag. I think the industry and public alike need to see the transparent system truly at play for the win to be celebrated, but it's an important start. I remain uninterested in being a part of the Grammys, especially with their own admission of corruption for all these decades. I will not be submitting in the future".

The Recording Academy would probably not frame last week's rule updates as "an admission of corruption". While the nomination review committees have become controversial in recent years, their wide use at the Grammys was also the result of controversy. Initially introduced in the classical categories in 1989 to make up for the smaller number of voters in the wider Academy membership with relevant knowledge, they were subsequently added to the jazz categories too.

Then, in 1995, committees were added to the big four awards to make a final decision on the nominees in those categories. That came after the nominations for Album Of The Year that year had featured nods for the likes of The Three Tenors and Tony Bennett, but not Snoop Dogg, Pearl Jam and other newer artists who had released some of the year's most successful albums. This led to accusations that the awards were out of touch.

The real issue there, of course, was that many voters among the Grammy membership were out of touch. Adding a committee to tweak the shortlists selected by those voters wasn't necessarily a real solution to the problem. It's only more recently that organisers have made moves to update the ceremony's pool of voters, so to ensure that they reflect the modern music industry and are still active in the business (some longtime voters having moved on but still been eligible to vote in the past).

Along with the decision to (mostly) drop nomination committees last week, the Recording Academy said that 90% of voters have now been through a requalification process. This was part of the justification for removing the committees - there now being more confidence that voters could be trusted to come up with lists of nominees that actually reflect what is happening the music world.

Another change is that Academy members will only be allowed to cast votes in a maximum of ten categories, down from fifteen. This aims to ensure that people only vote in categories where they have relevant knowledge, and to reduce block voting.

"As an Academy, we have reaffirmed our commitment to continue to meet the needs of music creators everywhere, and this year's changes are a timely and positive step forward in the evolution of our voting process", said Bill Freimuth, the Academy's Chief Awards Officer. "We rely on the music community to help us to continue to evolve, and we're grateful for their collaboration and leadership".

In an interview with Variety last week, Grammys boss Harvey Mason Jr said that he'd been working on dropping the committees for months before The Weeknd called them out. However, The Weeknd's manager, Wassim 'Sal' Slaiby, credited the artist with bringing about these changes, saying: "No change comes without a voice heard. I'm just proud of Abel for standing up for what he believes in. I was in a shock when all this happened but now I see it clearly, and I'm glad we stood for our beliefs".

Still, we know that this isn't enough for The Weeknd. Exactly what further change he'd would like to see isn't clear. It also remains to be seen if giving an updated pool of voters free reign to decide nominees stops complaints about snubs. I wouldn't hold your breath.

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