CMU Daily 23.10.17: Stream-ripping not necessarily infringement says EFF, Indie label market share is up

Stream-ripping doesn't necessarily constitute ripping off, says EFF
The Electronic Frontier Foundation has hit out at the US record industry's criticism of the stream ripping sites, accusing the Recording Industry Association Of America of misstating copyright law in its recent submission to the American government's notorious markets review. EFF also claims that the music and movie industries have presented a "misleading picture" of the role companies like Cloudflare play in online piracy.

As previously reported, the music industry has become increasingly vocal of late about stream-ripping, sites where users can grab MP3 downloads of audio that is streaming on the internet. The US record industry successfully took the biggest stream-ripping platform - YouTube-mp3.org - offline by suing its German operator. Meanwhile earlier this year, a report from the UK's Intellectual Property Office and collecting society PRS For Music said that growth in the use of streaming-ripping sites since 2014 meant they were now "overwhelmingly overshadowing all other illegal music services".

In its annual submission to the US government's notorious markets survey, which informs America's trade negotiations around the world, the RIAA said that since the demise of YouTube-mp3.org, "several other stream-ripping sites have 'doubled down' and carry on in this illegal behaviour, continuing to make this form of theft a major concern for the music industry. The overall popularity of these sites and the staggering volume of traffic [they] attract evidences the enormous damage being inflicted on the US record industry".

However, says the EFF, the RIAA is "mis-stating" the copyright liabilities of stream-ripping sites, in a bid to encourage the US government to put pressure on other governments to force such sites offline. "Websites that simply allow users to extract the audio track from a user-selected online video are not 'illegal sites' and are not liable for copyright infringement, unless they engage in additional conduct that meets the definition of infringement", the EFF says in its own recent submission to the notorious markets review.

The main defence of stream-ripping sites, including the now defunct YouTube-mp3.org, is that they have legitimate uses as well as illegitimate uses. Which is to say that, some content creators are happy for people to grab their streamed audio as MP3 files, while even where the content owner doesn't approve, the stream-ripping may be covered by the concept of 'fair use', in the US at least.

Similar defences were made in the early days of file-sharing about P2P technologies like Napster, Grokster, Kazaa and LimeWire, and in more recent years about file-sharing hubs like KickassTorrents and The Pirate Bay. In the main these technologies and sites were nevertheless found liable in court for so called contributory or authorising infringement, where you knowingly facilitate the infringement of others, and don't do enough to stop your technology being used for illegitimate rather than legitimate purposes.

Had the RIAA's YouTube-mp3.org litigation got to court - and assuming the stream-ripping site had used the "but we have legitimate uses too" defence - the record industry would almost certainly have cited precedents in the various file-sharing cases. Whether or not the stream-ripping platform would have been deemed liable for copyright infringement would therefore have depended on how the court chose to interpret contributory infringement laws. The pesky safe harbour may also have been thrown into the mix.

Either way, the outcome of that legal battle, had it got to court, wouldn't have been a foregone conclusion from the off. Yet - argues the EFF - the RIAA talks about the stream-ripping sites as if its interpretation of copyright law is fully endorsed.

The EFF reckons that the American government "must apply US law as it is, not as particular industry organisations wish it to be. Accordingly, it is inappropriate to describe 'stream-ripping' sites as engaging in or facilitating infringement. That logic would discourage US firms from providing many forms of useful, lawful technology that processes or interacts with copyrighted work in digital form, to the detriment of US trade".

As for criticism by the music and movie industries of Cloudflare - the internet services company that counts some piracy sites among its large client base - the EFF reckons that the content industries are misleading government officials there too. Among other things, reps for the record and film companies have moaned about how - by utlising Cloudflare's platform and its 'reverse proxy service' - piracy sites are able to obscure the IP addresses they are operating from, making the operators of said sites harder to locate.

The EFF writes: "RIAA describes [Cloudflare et al] as services used by 'pirate sites ... to obfuscate their IP address, creating obstacles to enforcement against such sites'. [The Motion Picture Association Of America] repeatedly describes CloudFlare ... as a service that 'masks the IP location of the website'. MPAA also states without evidence that a site's purpose for using a reverse proxy service is 'to curb rights holders' ability to identify its precise host'".

"What these commenters fail to mention is that nearly any service that stands between a website and its users will inherently cause users to see a different IP address than the one used by the website's own server", adds EFF. "This is neither nefarious nor particularly difficult to circumvent, given that [firms like Cloudflare] are well-established, largely US-based companies that respond to valid court process requesting the IP address of a website".

Noting that Cloudflare and its ilk provide vital services that make websites faster and more secure, EFF then adds the customary 'these companies can't be the police of the internet' line that Cloudflare itself routinely rolls out. Which is to say, these companies will act against copyright infringing clients on their platforms if told to do so by a court of law, but - they argue - they can't themselves decide what sites are or are not infringing copyright.

States EFF: "[These companies] are not required to seek out or police infringement by their customers, nor to render alleged infringers easily identifiable by copyright holders. Pressure on these services ... to engage in more private copyright enforcement than the law requires risks diminishing the benefits that the services provide for US trade competitiveness and for the preservation of robust free speech".

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Indie label market share went up last year, according to latest WINTEL report
The Worldwide Independent Network has published the second edition of its WINTEL report, which seeks to map the global market share of independent record companies combined, based on copyright ownership rather than distribution.

As previously reported, this is an important distinction for the indies. A not insignificant number of independent labels ultimately rely on one of the majors to get their physical and/or digital music to market. The majors then include those releases in their figures, even though they only distribute those recordings, not control them.

That makes it look like the majors control more of the recorded music catalogue than they actually do. Which has more significance than mere bragging rights, given that in the streaming era, market share can have an impact on the terms agreed in the big deals with the streaming platforms.

Or, in the words of WIN: "The claiming of market share by these international corporations, which currently amounts to $1.2 billion of revenue that should be attributed to the independent sector, distorts the true picture of market value. [This is] important because market share is used by the leading digital music companies such as Apple, Google and Spotify in negotiations with the independent sector and often determines the levels of remuneration paid by these companies to music right holders".

According to this year's edition of WINTEL, produced for WIN by research firm MIDIA, the global market share of indie labels based on copyright ownership rose by just under one per cent last year to 38.4%, resulting in a rise in revenues of 6.9% to $6 billion. The report also considers how things vary from country to country, noting that the US saw the largest swing in favour of the indies last year of 1.7%, while in Japan the indie share was down slightly by 0.3%. Indie share was also down slightly in the UK.

Says WIN boss Alison Wenham: "The WINTEL 2017 report tells the story of another strong year for the independent sector. It has seen solid growth overall and an astonishing increase in streaming revenues. Both are trends we are confident will continue. It is important when making sense of the global market for independent music that we continue to use ownership rather than distribution as the method of calculation. The claiming of market share through distribution by major labels distorts the true value of the independent market and creates a false picture of the amazing growth and vitality of our sector".

Meanwhile Paul Pacifico, CEO of the UK's Association Of Independent Music, added: "The music industry has always been driven by cutting edge companies run by innovative entrepreneurs. The WINTEL report clearly shows that this holds true in the digital age. The WINTEL report shines an important spotlight on the independent businesses, which together, make up over one third of the global music market and who occupy the most exciting, creative and compelling space in music both creatively and commercially".

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US music publishers propose new blanket licence for mechanical rights
The boss of the National Music Publishers Association in the US was last week talking up plans for an overhaul of the mechanical royalties system in America, so to overcome the high profile issues that streaming companies have had in this domain that have resulted in numerous multi-million dollar lawsuits. The grand plan could be summarised as follows: "let's do what happens in every other fucking country already".

As much previously reported, the streaming companies have run into major problems in the US when it comes to paying royalties to songwriters and music publishers for the songs that they stream. And as a result various streaming firms have found themselves on the receiving end of litigation, though Spotify's lawsuits have grabbed the most headlines.

Most people agree that a stream exploits both the so called mechanical rights and the performing rights of a song, and in the US - as in some other countries - those two elements of the song copyright have traditionally been licensed separately.

For the performing rights, a streaming service can get blanket licences from America's four performing rights organisations: BMI, ASCAP, SESAC and GMR. But there is no blanket licence available for mechanicals. US law provides a compulsory licence - so permission is granted and rates set by statute - but the streaming service must inform every copyright owner that their songs are being exploited and then arrange to pay the statutory royalties.

The big issue for streaming firms that have tens of millions of tracks on their servers is finding all those copyright owners. Labels upload the tracks and control the accompanying recording copyrights, but they neither control the song rights nor tell the streaming platforms what songs are being exploited and who wrote or published them. Meanwhile there is no one-stop database telling digital firms what songs are in what recordings, and who owns them.

There are various companies who can help streaming companies identify what songs they are using and who needs to be paid. Many digital companies have used The Harry Fox Agency - which used to be owned by the NMPA - to do that work for them. But many songwriters and music publishers have nevertheless gone unnotified and unpaid. Which means the streaming firms have violated the terms of the compulsory licence and are therefore liable for copyright infringement. Hence all the lawsuits.

A simple fix would be to have a collecting society that collects mechanical right royalties in the same way you have a collecting society (or societies) that collects performing right royalties. This is how it works in most other countries, where you either have both mechanical and performing rights organisations, or one society doing both.

That's basically what NMPA boss David Israelite has been talking up at various events for music publishers and songwriters Stateside - ie a new mechanical rights society that issues blanket licences.

His proposals would require a change to the compulsory licence, so US Congress will need to be involved. But unlike with other copyright reform proposals being put forward in Washington, Israelite is confident that he can get both the music industry and the tech sector behind this overhaul, meaning it has a much better chance of getting through in a speedy fashion.

Under the proposals, streaming firms would get a much simpler way to pay mechanicals while - in theory at least - more writers and publishers would be paid.

It is also hoped that the system for setting the rate for mechanical royalties would also be amended, most likely to the benefit of the music community. That's a change licensees might normally oppose, but hopefully not if it means they get a much simpler system for paying royalties and a whole lot less lawsuits.

According to Billboard, Israelite said of his plans to get a speedy revamp of the mechanical rights compulsory licence in Washington, including the establishment of an industry-wide collecting society and blanket licence: "I want a consensus bill, one that is negotiated by our community, including publishers and songwriters, the record labels and artists, the Digital Media Association and the broadcasters".

On the music community side, ongoing talks about this new system are also involving organisations like the Songwriters Of North America, the Council Of Music Creators, and PROs BMI and ASCAP.

The outcome of the reform, if it went ahead, would be the creation of a new industry-wide collecting society, possibly to be called SongExchange, akin to the US record industry's SoundExchange society that administers digital performing rights for artists and labels, and is also the result of a compulsory licence. The new organisation would be paid for by those digital platforms utilising its services, but would be owned by the music publishers and the songwriters.

The music publishing sector would pool its data into the new organisation which would then seek to get all the publishers and writers whose songs have been streamed paid. Quite how good a job the new organisation would do in that domain, we'd have to wait and see. Elsewhere in the world the efficiency and accuracy of the collecting societies in the way they process and distribute the royalties they collect varies enormously.

Negotiations as to how this all-new US mechanical royalties system would work are ongoing, and there are still some issues to be addressed. But Israelite says that most key stakeholders are on board with the basic principles and he hopes legislative proposals could be finalised as soon as next month. If, as he also hopes, those proposals were a "consensus bill", then it could become law next year.

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CMU's Setlist podcast looks at how Songkick and Live Nation's bitter legal battle is shaping up
Among the topics of discussion on this week's Setlist podcast - alongside New South Wales' new ticket touting laws and the end of an era for The Pirate Bay - CMU's Andy Malt and Chris Cooke look at the latest developments in Songkick's anti-trust lawsuit against Live Nation in the US.

As the case heads to trial, the two sides have continued with the bitter sparring that has run throughout the legal dispute since it began in 2015. Songkick has demanded sanctions against Live Nation for it failing to deliver 4000 documents relevant to the case on time. Meanwhile, Live Nation has yet again tried to have a big chunk of the case dismissed.

The ongoing fighting suggests an out of court settlement is unlikely, and this dispute is going to get its day in court. "It has always seemed like this is a very ambitious lawsuit on Songkick's part", Cooke says on this week's Setlist. "I hate the cliché of the 'David v Goliath' case, but it is a David v Goliath case, in the sense that Live Nation is the biggest live music company in the world".

Malt adds: "It's also interesting that it's the 'David' who brought the case, and it's still going on after several years. Often it would be the Goliath who brought the case in the hope that the smaller company just couldn't afford to continue with it over a long period of time, because these sorts of cases go on forever".

Of course, the other big development this month is that the Songkick ticketing business - formerly Crowdsurge, the part of the company not sold to Warner Music in July and which remains the plaintiff in this litigation - announced that it would cease operations at the end of October. Which means that by the time this dispute gets to court, the business will no longer be operational. But that doesn't mean the firm is any less determined to see its Live Nation litigation through to conclusion.

"[Songkick] said that [it shutting down its ticketing business] was caused by Live Nation and Ticketmaster stopping it from launching in the US", says Cooke. "So they were very much blaming Live Nation and Ticketmaster for the demise of that side of the business. But the boss of [what remains of the Songkick company], who was actually the original founder of Crowdsurge, was also adamant that he was going to continue with this lawsuit, even though in essence the Songkick ticketing business will be no more".

So it looks like we could see some heated exchanges in court next month. Find out more about how it's shaping up on the latest episode of Setlist here.

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Midem publishes white paper on the digital transparency debate
To coincide with the previously reported publication last week of the new 'Digital Dollar' guides by the UK's Music Managers Forum, music business conference Midem has published a new white paper by CMU's Chris Cooke on 'The Transparency Debate'.

There are two new MMF guides, both produced by CMU's consultancy unit CMU Insights as part of the 'Dissecting The Digital Dollar' project. 'The Deals Guide' identifies ten different kinds of label and distribution deals now available to artists, while 'The Transparency Guide' identifies 20 pieces of data and information artists and managers need from their labels, distributors, publishers and collecting societies in order to understand how their music is performing in the digital space.

The latter guide is part of the ongoing debate in the music community about the need for more transparency in the streaming music domain. That debate is reviewed in the new white paper, which has been published on Midem's Music Industry Insights website.

The white paper starts: "There has been much debate within the music industry in recent years about the need for more transparency in the digital music market. These discussions centre on the data and information all stakeholders in the streaming business - artists, songwriters, record producers and their managers, lawyers and accountants; record labels, distributors, music publishers and collective management organisations - need to truly capitalise on the potential of the rapidly growing streaming platforms. But who needs to be more transparent about what, exactly?"

Launching the white paper, Midem CEO Alexandre Deniot says: "There has been a lot of talk about transparency at Midem in recent years. We have also heard about the platforms and portals which have been built by the streaming services, record labels, distributors, music publishers and collecting societies to share more data and information with artists and songwriters. As these platforms and portals continue to evolve, it's good to consider what else is required to ensure a transparent streaming business for all".

He continues: "This exclusive white paper from Chris Cooke at CMU Insights for Midem thus provides a great overview of this important debate within the music industry".

You can access the white paper here.

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New London festival to consider future of live music with CMU
A new festival launches in London next week that seeks to explore the future of music through a programme of daytime discussions and evening gigs. Called We Are Robots, the event includes "eclectic live performances, label collaborations, interactive workshops and never-seen-before sound installations", among various other things.

The festival centres on East London's Truman Brewery and includes events in Boiler House, 93 Feet East and Rough Trade East. Line-up wise, the nighttime programme includes the likes of Mt Wolf, Malka, The Penelopes, Nsdos, Warm Digits and Manaré.

Daytime events will include sessions for students on Friday 3 Nov, and a series of panel discussions the previous day, Thursday 2 Nov. That will include a conversation hosted by CMU Insights looking at how new technologies are reinventing the live experience, from finding gigs and buying tickets, to what happens on stage, to how the show is seen and shared online. Full details of the panel will be announced shortly.

Confirming CMU's involvement, We Are Robots co-founder Emma Joyce said: "Across our programme of daytime conversations and nighttime gigs, We Are Robots is all about exploring the future of music, and that includes discussing how technology is changing the way we make, share and consume the music we love. It's great to team up with CMU Insights on one of our daytime discussions. Looking at how the live music experience is evolving, this session will be a great way to connect between our daytime programme of panels and evening line-up of great gigs".

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Ducktails' Matt Mondanile issues statement on sexual assault allegations
Ducktails' Matt Mondanile has responded to allegations of sexual misconduct while he was a member of indie band Real Estate. His lawyer has also criticised his former bandmates, saying that they breached a 'leaving agreement' by commenting on the accusations.

As previously reported, when Mondanile left Real Estate in May 2016, a statement from the band said it was in order for him to concentrate on his Ducktails project. However, following an exposé by Spin earlier this month, the band said in a statement: "Matt Mondanile was fired in February 2016 when allegations of unacceptable treatment of women were brought to our attention".

Mondanile initially told Pitchfork that he had "done nothing wrong at all". However, following a further article from Spin in which several women detailed their experiences, in a new statement given to Pitchfork the musician admits to "inappropriate behaviour" and being an "insensitive creep".

In the statement, issued via his lawyers, Mondanile says: "I am endlessly sorry for my inappropriate behaviour. I took advantage of my position as a musician, though I never intended to hurt anyone emotionally or otherwise. I've been an insensitive creep and again I apologise to everyone and anyone who was affected by this".

He continues: "I respect and commend the women who have come forward. Their breaking silence has compelled me to seek a more intense course of self-reflection, and personal development. I make no excuses for my behaviour, I only want everyone to be OK. Words cannot convey how truly sorry I am".

His lawyers add that Mondanile has asked them not to say anything "that blames or casts aspersions upon his accusers" despite "much of what has been written and talked about [being] false and defamatory".

"Matt realises that in his eagerness for physical contact and gratification, he has been far from sensitive in his pursuit of women", the statement goes on. "However, Matt's attorneys insist that it should be known that for each of the instances described in the media and online, there are two sides to these stories".

All of which skirts very close to the victim blaming and aspersion casting that Mondanile apparently doesn't want to occur. And while there are indeed two sides to every story, Spin's most recent article includes accounts from several women which span around a decade (some pre-dating his time as a member of Real Estate) and have a number of common themes.

The lawyers also have some strong words for Real Estate, saying: "The band required Matt to sign a leaving agreement in February 2016 that prohibits both him and the band members from making any negative or derogatory statements about the other, or that may negatively affect the other's reputation and career. In violating the terms of the agreement, Real Estate band members were not 'protecting the victims', they were instead protecting themselves by sidestepping the controversy to protect the band's commercial viability".

In responding to the complaint that they broke the 2016 agreement, the band might want to bring up a September interview with New York Daily News in which Mondanile said of working solo: "It's way easy for me to just do anything I want and not have to do the lame stuff I would have to do with [Real Estate]". But you could argue that would be a bit petty. They have not as yet responded at all.

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Sälen announce short film and soundtrack EP
Sälen have announced that they will release a short film and EP, both titled 'Zebedy's Cult', on 10 Nov.

"'Zebedy's Cult' is about a flamboyant agony uncle called Zebedy", explain the band. "He is on call like a drug dealer, to give advice from his rickshaw. The soundtrack deals with unrequited love and addresses the promiscuity of women in a way society sadly does not".

Discussing the new songs on the EP, they add: "'Lite Behaviour' is our homage to the girls who carry condoms with them always, whilst 'Sweet Toothache' is about sucking off an ice cream man. We wanted to re-release a more polished 'I'm In Love With My Best Friend' as the original was recorded in Simon's bedroom when Ellie wasn't fully aware of her voice yet. 'I Am Champagne' is one that parents can get behind with its message that you don't need champagne and cocaine to have fun".

'I Am Champagne' and 'I'm In Love With My Best Friend' are up on those pesky streaming services now. Meanwhile, you can catch Sälen live at Oslo in London this very Wednesday.

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Django Django announce UK tour dates
Django Django have announced that they will head out on a tour of the UK in February, with dates continuing into March.

The band recently announced that they will release new album, 'Marble Skies', on 26 Jan. Tickets for the shows, which include a performance at newish London venue The Printworks, will go on pre-sale this Wednesday. They'll then hit general sale on Friday at 9am.

Here be the dates:

26 Feb: Dundee, Fat Sam's
27 Feb: Aberdeen, The Garage
1 Mar: Glasgow, SWG3
2 Mar: Dublin, The Tivoli
3 Mar: Leeds, The Church
20 Mar: Nottingham, Rescue Rooms
21 Mar: Manchester, O2 Ritz
23 Mar: London, The Printworks
24 Mar: Bristol, SWX

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Music Venue Trust, Spotify, Justin Timberlake, more

Other notable announcements and developments today...

• The Music Venue Trust last week hosted its Venues Day event in London, and during the proceedings revealed that Sony Music has pledged financial support to the organisation, which supports and champions the UK's grassroots venues. MVT says it hopes Sony's pledge will encourage financial support from the other key players in the music industry.

• Spotify could be valued at $20 billion when it finally lists on the New York Stock Exchange, and could ultimately be worth $100 billion, reckons investment bank GP Bullhound. It has advised the streaming firm in the past, so is either very well informed or highly biased when estimating Spotify's future value. You decide. Recent private trading of the streaming company's stock reportedly valued the company at $16 billion.

• That Justin Timberlake is going to have another go at the Super Bowl half time show. He last appeared as one of several performers in 2004, causing controversy (and an unnecessary amount of legal action) when he exposed one of Janet Jackson's breasts during the performance. Presumably all underwear will be thoroughly checked this time around.

• DJ Shadow will be having another clear out of his vast record collection, selling numerous items at Rappkats in LA on 4-5 Nov. More info here.

• It's a Spice Girls reunion! By which I mean Emma Bunton, Geri Halliwell and Victoria Beckham each appearing briefly - not singing - in Mel C's new video. KFC will no doubt be excited, the fast food chain following all five former Spice Girls on Twitter along with six men called Herb - a sneaky social media nod to its long held claim of employing a "secret recipe blending eleven herbs and spices".

• Charlotte Gainsbourg has released new single 'Ring-A-Ring O Roses', taken from upcoming new album 'Rest'.

• Liima have released new single 'Two-Hearted' and announced a handful of UK shows in January and February, including a performance at Oslo in London on 2 Feb.

• Jane Weaver marked the beginning of her UK tour on Friday with the release of the video for the title track from new EP 'The Architect'.

• Sephine Llo has released the video for 'Paper Thin', taken from her debut album 'I, Your Moon', which is out this week.

• Alabaster Deplumbe has released new single 'Be Nice To People'. You can catch him on tour supporting Seamus Fogarty next month.

• Snapped Ankles have announced that they will play a one-off show at the Moth Club in London on 24 Jan. Tickets are on sale this very second.

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

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Shane Richie reckons he can get Spandau Ballet back together (again)
Upset at Tony Hadley's recent departure from Spandau Ballet? Well, take a bit of comfort in this. Shane Richie is going to have a go at sorting things out.

As previously reported, Hadley announced in July that he was leaving the band again "due to circumstances beyond my control". His ex-bandmates, however, said that Hadley "had made it clear in September 2016 that he didn't want to work with the band anymore", which had left them unable to perform together. However, with Hadley officially out of the picture, they have begun auditioning new singers.

This isn't the first time the band have fallen out of course, and Richie reckons he's the man to sort it out this time. Why? Because it was he who sorted things out last time.

"I helped them get back together all those years ago, and I'd love to sit down with Tony, Gary and Martin Kemp to try do it again, get them back together", he tells the Daily Star. "Tony is one of my closest mates and for me there is no Spandau without Tony. I'd love to think I could do it".

Richie, of course, is in the process of promoting his non-hobbyist new album, 'A Country Soul', featuring covers of songs by country stars like The Eagles and Nik Kershaw, as well as a few originals.

For those of you still doubting his music credentials, he says: "I've had bands since I was sixteen. I know what it's like to be in a pub and get spat at". But enough about his time spent working on 'Eastenders', here's new single 'Wave On Wave', originally by Pat Green.

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