CMU Daily 11.08.23: Arbitration unlikely for Ticketmaster lawsuit, Epic v Apple latest

Californian judge likely to deny Ticketmaster's latest attempt to force customer dispute to arbitration
A Californian judge looks increasingly likely to deny attempts by Live Nation and Ticketmaster to force a lawsuit accusing the live giant and its ticketing business of anti-competitive practices to arbitration. That's because of a decision by Ticketmaster to change its chosen arbitrator, with attempts to justify that change on cost efficiency grounds failing to convince the judge.

Over the years Ticketmaster has managed to force various legal disputes with customers to arbitration - rather than having those disputes being fought out in public in a court of law - because the ticketing firm's terms and conditions have an arbitration provision in them.

Attempts by customers to argue that no one reads those terms and conditions and therefore the arbitration provision should not be enforced have generally been unsuccessful.

However, Ticketmaster then switched its chosen arbitrator from a company called JAMS to a company called New Era. It argues that the latter company is better equipped to deal with complaints where there are lots of concurrent complainants, which is common in the ticketing market.

But some of those complainants have claimed that New Era is biased in favour of the ticketing firm, and that the processes employed by the company - and which complainants are forced to navigate - are "non-traditional" and "Kafkaesque".

This has all become a big talking point in a lawsuit filed by some Ticketmaster customers that accuses Live Nation and its ticketing businesses of anti-competitive conduct. Of course, plenty of people have made similar allegations over the years, ever since Live Nation and Ticketmaster merged back in 2010.

Live Nation has always strongly denied those allegations, but could probably do without claims of that kind being discussed in public in court. Especially given its dominance of the live entertainment market has become a political talking point in Washington once again.

In terms of the shift from JAMS to New Era, both the how and the why for that shift have been discussed as this dispute has gone through the motions. The plaintiffs have argued that Tickemaster "slid this change into terms that most consumers had previously agreed to, without flagging the dramatic shift being made".

And last month judge George H Wu also expressed concerns about the way the change was made. "There are questions as to why there wasn't any notice of this provided", he said, noting that providing such a notification would be relatively cheap and easy to do. "It boggles the mind as to why that wasn't done here, just to give some sort of notice for people potentially going onto the site".

According to Law 360, at another court hearing this week, lawyers for Live Nation again stressed that the move to New Era was mainly motivated by it being better to deal with cases where many complainants have the same complaint. And that results in significant cost savings, an attorney added, because with JAMS there is a cost associated with each complainant.

But Wu didn't seem particularly sympathetic to that argument. He noted that the courts are actually well set up to deal with cases where many complainants have the same complaint, because that's what class actions are designed for. So if arbitration isn't practical, why force that approach on a dispute? And if you choose 'class arbitration', well, maybe you have to deal with the consequences.

"There's a normal way that these things are resolved", the judge observed, and that "is through class action. [But] they want to avoid class actions, for one reason or another, and so therefore they decide, 'Well, let's force them into arbitration individually and let's also include class arbitrations'. So that's the situation that results".

Although Wu didn't make a final decision on all this during the hearing itself, that decision is imminent.

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US ruling blocking Apple's anti-steering provision remains paused pending Supreme Court appeal
A judge in the US Supreme Court has declined to reverse a decision made by the Ninth Circuit Appeals Court that is pausing an earlier ruling that will force Apple to allow app-makers to sign-post alternative payment options in their apps.

It means that ruling will remain stayed while Apple ploughs on with the next stage of appeal in its legal battle with Fortnite maker Epic Games.

Epic - like many other app-makers, including Spotify - objects to Apple's rules relating to in-app payments on iOS devices.

Those rules mean that many app-makers are obliged to use Apple's own commission-charging transactions system to take in-app payments. Plus, they are not allowed to sign-post alternative payment options elsewhere on the internet. The latter rule is often referred to as the anti-steering provision.

Epic, Spotify and others have been seeking to force a change to those rules through lobbying and litigation in various countries. As part of that, Epic filed a lawsuit with the courts in California, accusing Apple of breaking competition law.

In the main that litigation was not successful, but the judge did rule that the anti-steering provision violated Californian law. And therefore, back in September 2021, she ordered Apple to allow the sign-posting of other payment options.

However, both Epic and Apple appealed the judge's wider ruling to the Ninth Circuit court, and Apple successfully got the order regarding the anti-steering provision stayed pending the outcome of that appeal.

The Ninth Circuit pretty much upheld the lower court's decision. Which means Apple is now taking the matter to the US Supreme Court. And last month it successfully convinced the Ninth Circuit that the lower court's ruling on the anti-steering provision should remain paused while it goes through that process.

For it's part, Epic reckons there shouldn't be any further delays in forcing Apple to allow alternative payment options to be sign-posted in iOS apps.

The chances of the Supreme Court even hearing Apple's appeal, let alone it over-turning the lower court's judgement, are very low, it argues. And the ongoing delay in enforcing this particular ruling is harming both app-makers and app users.

Having failed to convince the Ninth Circuit of that, it hoped that the Supreme Court itself might intervene. According to Reuters, it fell to Supreme Court judge Elena Kagan to consider that request, because she handles any emergency matters that arise from a group of US states including California.

So, Kagan gave Epic's arguments a little consideration and decided, on balance, that there is no case for reversing the Ninth Circuit's decision on this. Which means the nearly two year old ruling on the anti-steering provision will remain stayed for the time being.

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Talent agency CAA begins downsizing amid Hollywood strikes
Talent agency CAA has instigated some downsizing, with about 60 employees - including agents, executives and support staff - reportedly affected. However, it is likely to be the acting side of the agency that is mainly impacted, with the ongoing strikes in Hollywood prompting the cut backs.

American performers union SAG-AFTRA last month joined the Writers Guild Of America in going on strike in a dispute over things like streaming royalties and the approach being take by the big studios to artificial intelligence. That has resulted in American movie and TV projects coming to a halt.

The Hollywood Reporter notes: "Several talent agencies have cut staff in the ensuing months as the guilds faced off with the Alliance Of Motion Picture And Television Producers, which bargains on behalf of studios".

"For instance", it adds, "Endeavor, the owner of fellow 'big three' agency WME and fashion-focused IMG, estimated on 8 Aug that the impact of the actors' and writers' strikes would be about $25 million per month in revenue".

The talent agencies - including the music divisions that work with artists on their live activity - were previously hit by the COVID-19 pandemic, of course, which stopped shows and tours, and also put TV and film productions on hold for a time.

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Patreon integrates with Spotify for podcasters with premium content
Direct-to-fan service Patreon this week activated a new integration with Spotify that aims to make it easier for podcasters to make premium content available to those listeners that support them financially.

As a result of the new integration, podcasters can push premium as well as free content into Spotify, with the former only available to those listeners supporting the podcaster on Patreon and listed on a separate page within the Spotify app.

Lots of podcasters generate income by selling a subscription to listeners that gets them access to bonus content and other benefits, many using Patreon to manage that element of what they do.

However, delivering that experience is sometimes a bit clunky. If the premium content is only available behind the paywall on Patreon itself, that's not necessarily very useful for listeners who access podcasts via apps like Spotify.

Some podcasters provide a secret RSS feed for the premium content that subscribers can use via any podcast app, though subscribers can then share that secret feed with other people, and there's no way to regulate that.

Both Apple and Spotify have been developing their own tools to help podcasters monetise their podcasts through subscriptions.

Though with Patreon already being used by a large number of podcasters, the tie up between it and Spotify is a useful development. Podcasters will also be able to promote the premium version of their podcast via the page on Spotify where the free version is accessed.

Patreon explained earlier this week: "This partnership creates an integrated Patreon and Spotify experience. Now, podcasters can promote their Patreon-exclusive episodes on Spotify to drive membership of their Patreon where they can directly engage with fans to build community".

"Once a podcaster syncs their two accounts", it went on, "all Patreon-exclusive episodes will show up on a new dedicated page on Spotify. To help promote the new members-only Spotify show page, promotional banners can be added to the top of an existing free Spotify show page".

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DEALS

Sony Music labels Since 93 and RCA US have together signed Mette, with the deal formally announced alongside the release of new single 'Van Gogh'. Says Glyn Aikins, co-President of Since 93 and RCA UK: "We are delighted to welcome Mette to the Since 93 family alongside RCA US. A multi-hyphenate artist and quadruple threat, Mette's music showcases the depths of her unique artistry. A force to be reckoned with, Mette is an all round entertainer and is destined to become a global superstar - watch out!"

Iconoclast has acquired the producer royalties of Giorgio Moroder and says it plans to work with the producer on developing his name, image and likeness rights. Says the company's founder Olivier Chastan: "Working with my friend Giorgio is an incredible honour. More than 45 years after they were created, songs like 'I Feel Love' and 'The Chase' still seem like the soundtrack of the future".

Downtown Music has announced a deal with The Hoosiers which will see the band working with the firm's publishing business on their songs and its FUGA distributor on their recordings. "We are THRILLED to partner with such forward-thinking teams at both Downtown Music Publishing and FUGA", say the band's management. "It felt like the right home for the band from the very start of our conversations".

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APPOINTMENTS

Dance label Ultra Records has announced that LA-based A&R exec Alexander Vazelakis is returning to the business as Head Of A&R after a brief stint with Helix Records, the latest label venture from Ultra founder Patrick Moxey. Says Ultra Records President David Waxman: "Alex has a keen ear for talent and extensive industry expertise. We are excited to have him leading the A&R team in this new chapter of his career at Ultra and look forward to the contributions he will make to further elevate the artistry and success of our roster".

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MEDIA

Radio Today has spotted that radio company Global has added a channel to its app using the Galaxy brand. At one point the dance music centric Galaxy radio station operated in multiple regions around the UK, but the brand was phased out in 2011 with its frequencies switched over to Capital FM. The Galaxy channel on the Global app seemingly popped up last month. It's not clear if a bigger relaunch is planned or, Radio Today also notes, maybe the media firm is seeking to protect the Galaxy trademark, given you can lose trademarks if you fail to make use of them.

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RELEASES

Headie One has released new track 'More Money More Problems' which, we are told, is "the embodiment of Headie's street-smart lyrics, recounting his journey from Tottenham to rap superstardom with shout outs for Biggie Smalls and Nipsey Hussle".

James Acaster has announced the release of a new Temps EP in September which is a companion to 'Party Gator Purgatory', the Temps album that was released back in May. The 'After Party' EP will be out via Bella Union on 8 Sep. From it, this is 'firstbirthday', featuring Nnamdi and Public Speaking.

Florence + the Machine have released 'Under Heaven Over Hell', a 39 track compilation featuring songs from across the band's career personally curated by Florence Welch.

Regina Spektor has announced a re-pressing of her album 'Soviet Kitsch' to mark its 20th anniversary. It will be out on 3 Nov on lovely translucent yellow vinyl - pre-order here.

Nas has released a video, directed by Kid A, for 'Motion', a track from his recent album 'Magic 2'.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Abba: The Movie set for cinema screenings next month
The 1977 Abba movie - you know, 'Abba: The Movie' - will be screened in cinemas on two dates next month "transporting audiences to the disco era when the Swedish icons first ruled the charts and hearts of millions". Or so we were told in an official announcement earlier this week.

Directed by Lasse Hallström, the film follows the band on an Australian tour with a mockumentary-style subplot thrown in for good measure.

Organisers of next month's screenings add that the remastered film boasts "electrifying renditions of Abba's timeless hits, including chart-toppers such as 'Dancing Queen', 'SOS', 'Name Of The Game' and 'Waterloo'".

The screenings will also feature some extra content, including lyric videos and some insights into the making of the Abba Voyage shows in London.

Says Mia Segolsson of Polar Music International: "I am THRILLED that we are finally able to showcase the iconic 'Abba: The Movie' again across the globe, almost 50 years since its opening. What better place to experience Abba in their prime than on the big screen together with both new and old fans. 'Abba: The Movie' is a testimony of the magic that was and is Abba".

The screenings will take place on 17 and 19 Sep with more info here. Tickets go on sale on 16 Aug.

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