Cox targeted again by rights owners

The three major recorded music companies and numerous of their labels have launched a new legal action against US internet service provider Cox Communications for copyright infringement. The move follows the earlier 2014 action from BMG, who took umbrage at  what it considered was Cox's poor and ineffective approach to dealing with customers who used Cox's services to infringe their copyrights. Cox, the privately owned subsidiary of Cox Enterprises, provides digital cable television, and telecommunications services in the United States, has more than 4 million subscribers and relied on the 'safe harbor' defence in US law.

Whilst BMG acknowledged Cox had policies in place to deal with users who repeatedly infringed copyrights, it accused  Cox of failing to implement it's own policies and argued that this meant the ISP should be denied safe harbor protection and should be liable for the infringement of its copyrights  by Cox's customers. 

And at first instance BMG prevailed and in August 2016 Cox Communications were ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company by a federal judge. The ruling followed a jury decision which found Cox liable for illegal movie and music downloads by its customers and the court found that the company's behaviour amounted to wilful infringement of copyright.

The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement - a ruling which at the time was thought to have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing - which Cox then failed to act on.  

However, that ruling was subsequently overturned on appeal - but it was an interesting ruling: The decision, by a three-judge panel of the 4th Circuit Court of Appeals, returned the case to the District Court for a new trial, based on a decision that there was an error in jury instructions. Irrelevant of arguments about safe harbor protection at the heart of the case, Cox might not been responsible for users' infringement as companies are only liable for contributing to infringement if the companies either know about acts of infringement, or are wilfully blind to them, and the appellate court ruled that the trial judge, District Judge Liam O'Grady, had incorrectly told the jurors that they could find Cox liable if it knew or should have known about infringement by users. "The formulation 'should have known' reflects negligence and is therefore too low a standard," the appellate judges wrote. "Because there is a reasonable probability that this erroneous instruction affected the jury’s verdict, we remand for a new trial."

But, and its a big but, the 4th Circuit took a long hard look at how and why Cox would be protected by US  "safe harbor" provisions that protect service providers from liability when users infringe copyright. - and here the Court ruled against Cox on a key point. The DMCA provides a degree of protection to ISPS and other platforms that respond expeditiously to takedown requests. But one of the requirements is that the ISP and other intermediaries have "adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers." The appeals judges said that as it stood, Cox wasn't entitled to rely on safe harbor because it did very little if anything even when told about repeat offenders, re-affirming the jury decision that sided with BMG and against Cox when they found the broadband carrier liable for piracy by its subscribers. 

Indeed despite 'losing' the case, many in the entertainment sector were pleased with the February 2018 decision and the appeal court's conclusion that the safe harbor provision of the Digital Millennium Copyright Act require a meaningful implementation of a policy that terminates the service of repeat copyright infringers - not least because the appellate judges agreed with BMG that Cox wasn't entitled to rely on the safe harbor protections, writing that the broadband provider's policy was lacking. Cox had in place a "13-strike" repeat-offender policy, meaning that the company would consider terminating subscribers after they received 13 notices of copyright infringement. In practice, it has been alleged the company went to great lengths to avoid disconnecting people with the court acknowledging  "Cox formally adopted a repeat infringer 'policy,' but ... made every effort to avoid reasonably implementing that policy ...... Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." It was alleged that Cox really maintained an "under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers." 

Judge Diana Motz was clearly unimpressed with Cox's efforts to stem piracy by its customers saying: "Indeed, the risk of losing one's Internet access would hardly constitute a 'realistic threat' capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers" and saying a "ISP has not 'reasonably implemented' a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer 'policy,' but ..... made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy." Motz added that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can't be entitled to a safe harbor defence.

In the wake of the appellate court's ruling, the Recording Industry Association Of America (RIAA) used the appeals court judgement in an action against another ISP,  Grande Communications. In am April 2018 filing related to that case, the RIAA argued that the appeals court ruling in BMG v Cox "affirmed the holdings ... that [we] rely on here, and expressly rejected the central arguments [Grande] advance in their motions to dismiss" and accused Grande of “refusing to take meaningful action against repeat infringers”,  users who repeatedly downloaded music illegally over BitTorrent networks.

Now Sony, Universal and Warner are also using the BMG decision to underpin a new lawsuit against Cox (Sony Music Entertainment et al v. Cox Communications, Inc. et al). The claimants say that while Cox claims to have an internal procedure to deal with repeat infringers in its customer base, the earlier case confirmed this process to be a "sham" and the labels say that Cox "knowingly contributed to, and reaped substantial profits from, massive copyright infringement committed by thousands of its subscribers" and that when the labels notified Cox of infringements by its users "rather than working with plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders" and this, the labels say, meant Cox was "wilfully blinding itself to any of its subscribers' infringements that exceeded its 'cap'" and the only justification for the arbitrary cap is alleged to be that "rather than stop its subscribers' unlawful activity, Cox prioritised its own profits over its legal obligations".

http://the1709blog.blogspot.com/2018/02/us-appeals-court-tells-isp-that-safe.html

https://www.mediapost.com/publications/article/313895/court-reverses-25-million-copyright-verdict-again.html

https://jolt.law.harvard.edu/digest/bmg-v-cox-court-of-appeals-denies-dmca-safe-harbor-in-landmark-copyright-case

https://www.billboard.com/articles/news/7768055/riaa-suing-grande-communications-copyright-infringement

http://www.completemusicupdate.com/article/major-labels-sue-cox-communications/

The CopyKat - mid August musings for copyright monkeys

US Judge declines to dismiss criminal charges against Kickass Torrents Owner

For years in the USA, there's been ample debate and scholarly literature over whether there really exists a crime for secondary copyright infringement. On Friday, a federal judge in Illinois probably made the day for big copyright holders by ruling that the U.S. Government has properly indicted Artem Vaulin, the alleged founder of KickassTorrents. A copy of the judgment can be viewed in full here.

Vaulin is currently in a jail cell in Poland after the 31-year-old was charged last year by U.S. authorities with running one of the world's most popular places to illegally obtain movies, television shows, songs and video games.

Judge John Lee takes up the issue of whether secondary liability for copyright infringement can be extended from the civil realm to the criminal one. In his decision the judge says that Vaulin is basically missing the big picture.

"[A]s should be clear by now, the indictment does not charge Vaulin with common law secondary liability... Rather, the indictment relies on the text of the congressionally enacted conspiracy and aiding and abetting statutes... Thus, the indictment charges Vaulin not with crimes based upon common law theories, but for conduct made unlawful under unambiguous statutes."

Dawn of Planet of the Apes Halted as Peta call time on Monkey Selfie Case

Naruto, via his self-appointed lawyers from the People for the Ethical Treatment of Animals, is in the process of dropping his lawsuit over the now infamous monkey selfies. That's according to a Friday legal filing with the San Francisco-based 9th US Circuit Court of Appeals, which is being asked to hold off on issuing a ruling that everybody believes is going to go against Naruto.

Nobody would say publicly what the deal is, or why this is happening. However, during oral arguments in the case last month, a three-judge panel of the court of appeals eviscerated Naruto's arguments.

On the positive side though, PETA's lawsuit has prompted public discourse about the idea of animals owning property. And that's why this lawsuit may have been about nothing more than monkey business all along.

T. Rex heir sues Sony over Baby Driver song copyright

Sony is being sued for using a song by glam rock band T. Rex in summer blockbuster Baby Driver "without permission".

The son of late frontman Marc Bolan has filed a lawsuit accusing the studio of copyright infringement over the use of the band's hit Debora. A full copy of the suit can be viewed here.

Feld Bolan won the rights to the works of his father's band three years ago and is seeking punitive damages.

"Inexplicably, defendants failed to obtain - or even seek - the permission of the composition's US copyright holder Rolan Feld," said the complaint filed in Los Angeles federal court.

Feld was made aware of the use of 'Debora' when a Sony Music representative contacted his lawyer to request a licence to use the track on the movie's soundtrack release. The complaint claims that Feld then let Sony know that use of the song in the movie was "unauthorised", but Sony is said to have responded with "conflicting explanations", and Feld says they have now ceased communications.

Cards Against Humanity granted injunction in copyright and TM claim

Cards Against Humanity owns copyright number TX0007492177 at the US Copyright Office for its “base” set and numerous other copyright for its expansion packs.

The company has used the trademark ‘Cards Against Humanity’ since 2009, along with the tagline “A party game for horrible people”, its trade dress, which consists of white lettering on a black background with vertically aligned text, and a three-card design.

Cards Against Humanity is sold to US consumers through Amazon, its own website, eBay and, since 2014, various selected retail stores. A US judge has granted the owners of card game Cards Against Humanity an injunction against Skkye Enterprises, a company accused of selling counterfeit versions of the game. 

Cards Against Humanity filed a copyright and trademark infringement claim(pdf) against Skyye in September 2016 at the US District Court for the Eastern District of Missouri.

District Judge Audrey Fleissig granted (pdf) a permanent injunction and default judgment on Wednesday, August 9.On copyright infringement, Fleissig said that an award of $12,000 per infringement, totalling $60,000—or three times the highest estimated sales of defendants’ infringing game—in combination with the other damages, is a “just and suitably deterrent outcome”.The court awarded $20,000 per trademark infringement, for a total award of $60,000, which Fleissig said “compensates plaintiff in a fashion consistent with the purposes of the Lanham Act and case law”.

Cards Against Humanity was also granted an injunction against Skkye, along with an order for destruction of infringing goods.It was also awarded attorneys’ fees, subject to a further submission to the court on their reasonableness.

This CopyKat from Matthew Lingard

N-N-N-Nineteen and Sony spat

Thanks to a public stand by artists such as Taylor Swift, and the UK campaigning organisation The Featured Artists Coalition, the music buying public are becoming increasingly aware of the often poor deal most recording artists get when it comes to royalties from digital downloads of their works. Now, documents released by the US District Court of the Southern District of New York reveal just how cynical is the position of Sony when it comes to negotiating deals with the likes of Spotify. This will come as no surprise to regular readers of this blog, following Ben's story here about the leaked contract between Sony and Spotify. 

Sony is being sued by 19 Recordings Ltd (which represents a number of artists from the American Idol series, including Kelly Clarkson and Carrie Underwood) over claims that Sony has acted in bad faith in taking a financial stake in Spotify and benefiting from general advertising revenue without passing on a share to the artists. Sony defends its activities by saying it is not required to share its general profits with its artists. While this may in principle be true, 19 are alleging that Sony have arranged their affairs to deliberately minimise the amount they have to pass on to the artists, often in contradiction to the 'best endeavours' clauses in the recording contracts signed with their artists. They say that Sony and other major record labels "have significant power to exert control over Spotify in order to not only dictate how revenue will be paid, but wrongfully and in bad faith divert money from royalties that must be shared to other forms of revenue that they can keep for themselves."

Sony rely upon the clauses within the contracts agreed between Sony Music and 19 Recordings Ltd which explicitly set out that Sony is not required to pass on general income or profits unrelated to individual tracks or albums. They also point to the SDNY Court's earlier ruling that proceeds from successful infringement and pirating lawsuits brought by Sony are to be treated as general income to record label and do not need to be passed on to the recording artists.

The current skirmish is about 19's attempt to amend the particulars of its claim, and Sony's motion for summary dismissal of the amended claim. We may have to wait some time before knowing if the actual issues will be heard at a full trial, but in the meantime, the public airing of disputes like this does nothing to improve the perception of the majors being out of touch and only interested in their own profits. Here is The Featured Artists Coalition's take on the situation:

"Whatever the legal rights or wrongs in Sony’s case, the breach of moral trust that has long been felt amongst artists is now in the public domain and on the record. If the labels won’t come together with artists to fix the problem, perhaps legislators will. Without solutions, the future of the music industry hangs in the balance as artists cannot make a living out of scotch mist, lining the coffers of record labels who appear not to care about the very hand that feeds them."

More details of Sony's response to 19's Amended Claim here (pdf)

Article on BBC News about Apple Music and streaming here

Spotify leak puts streaming royalties in focus

The Verge has published details of the hitherto unknown terms of the January 2011 deal between streaming service Spotify and Sony Music, one of the two big record labels. And it makes for fascinating reading. Perhaps what isn't surprising (given the then near start up nature of Spotify in 2011) is a contract laced with 'Most Favoured Nations' provisions for Sony. The basic deal consists of annual advances paid by Spotify and a 70:30 split of advertising revenues in favour of Sony: On gross revenues the detail shows the actual split of revenue varies from rights owner to rights owner, but labels are usually getting somewhere between 55-60% and publishers 10-15%. The Sony contact unsurprisingly puts the world's second biggest record company at the top end of the range, on a 60% split. 

There are some odd quirks - Spotify seems to have a 15% buffer zone in ad sales which it doesn't have to account to Sony (and therefor cannot be shared by Sony's artistes) to cover out-of-pocket costs paid to unaffiliated third parties for ad sales commissions (subject to a maximum overall deduction of 15 percent "off the top" of such advertising revenues). Sony seems to have its own ad spots it can sell to a value of $9 million annually. How Sony accounts on for the profits from this (and how it pays over any share of advances - if it does at all) to artistes is unknown. These label advances are controversial:  Some artists and managers say they are concerned that the label's demands on digital start-ups have prevented some new services from ever getting to market, which results in a market dominated by one or two main payers - Like Spotify in which both both Universal and Sony are believed to hold equity. But of more concern for artists is what happens to unallocated advance payments and whether larger advances (which labels generally benefit from) push down ongoing royalties - where artistes do share.

The other big question is how much Sony Music gets paid per stream, and well, it’s complicated! Section 10 of the leaked contract shows how Sony Music separated it's label fees into three distinct tiers — the ad-supported free tier, online day passes (which no longer exist), and Spotify’s premium service - and a somewhat complex formula governing payments to Sony. Spotify must pay $0.00225 per minimum stream, but this rises to $0.0025 per stream if growth targets are missed.  But as the Verge says "Even with this contract, it’s still difficult to tell how much artists are getting paid by Spotify. Sony Music is likely getting considerable payouts from Spotify each year, but what it does when it gets that money — and how much of those payments actually make it down to the artists — is still unknown. Some artists have clauses in their contracts to get a larger share of the streaming revenue, and some artists are still operating under CD-era contracts that only give them 15–20 percent of their streaming revenues." But a share of which revenues?

In a related theme - and noting the above splits in gross revenues with labels collecting up to five times as much as music publishers from streaming service revenues - PRS for Music chief executive Robert Ashcroft has delivered a speech at the PRO's 2015 AGM outlining a number of issues which he says have prevented publishers and songwriters getting "fair value" for their work. Among the obstacles highlighted by Ashcroft were the continued battle against piracy, unhelpful safe harbour legislation which has been used by the likes of YouTube to protect their business models (noting "This legislation was not intended to protect those that host, curate and distribute copyright material while claiming to have no knowledge of it on the grounds that their users, and not they themselves, have the knowledge and are responsible for clearing copyright."), and the shift from downloads to streaming, which Ashcroft said is not yet paying enough to songwriters. Music Week have published the whole speech. 

The CopyKat - no goals please for the Football Premier League

The the major record labels (Sony, Universal Music and Warner Music) have finally begun their case against Russian social media site VKontakte (VK) for "large-scale" music piracy. Dubbed "Russia's Facebook" and the 22nd most popular site in the World, VK allows users to upload music and videos but is accused of refusing to strike licensing deals with rights holders. Now a combined case from the labels has gone before the St Petersburg and Leningrad region arbitration court and a series of substantive hearings will begin on 8 September, and is expected to run into October. The labels are seeking £1m in damages and an order requiring VK to implement fingerprinting technology to delete copyrighted works and prevent them from being re-uploaded. According to labels trade body the IFPI, growth of licensed digital services in Russia is only $0.50 per capita; the European average is $8.40 and licensed services in Russia including local services Yandex, Trava and global services iTunes and Deezer are suffering with IFPI boss Frances Moore saying ""VK hurt competitors because they are not paying anyone for anything - you cannot compete with that". 

It seems the delay in passing the new exemption from copyright for parody into British law (or indeed allowing Scotland to devolve to pass its own parody laws) may well have caused a problem for one of the productions at this year's Edinburgh Fringe festival. The Times tell us that The Edinburgh Book Club - the producers of 50 Shades the Musical  - have received a letter from legal representatives of 50 Shades of Grey writer EL James and her publishers. The musical was created in the USA by producers Baby Wants Candy under the somewhat more generous 'fair use' provisions found stateside. More here.

The mural ' Castillo'

A still from The Zero Theorem

Three street artists, two Argentinian and one Canadian, and known as Jaz, Ever and Other, have accused the Monty Python actor and film director Terry Gilliam of plagiarising one of  their murals in his latest movie The Zero Theorem. Deadline reports that "To make their point, the three try to show with the vast array of images and pictures in their complaint that similar faces and undershirt wearing animal figures from the mural were used in the film" adding "To further their claim, the trio notes that they registered the mural with the Copyright Office in Argentina, under the title Castillo effective on November 15, 2013." Here are the two images - the 2010 mural on Buenos Aires first,  and a still from the film second: 

Angelina Jolie emerged victorious in court last year when a judge ruled she had not copied another author's work for her film In The Land Of Blood And Honey - and you can see Eleonora's article on the background to this case here.  But journalist and writer James Braddock is now appealing against the decision.  In papers filed in March 11 this year, the Croatian author claims the original judge in the case 'used a poor system to determine if Jolie had infringed on his copyright,' for his book The Soul Shattering reports says the Daily Mail.  Claiming his book was not translated accurately, Braddock says in the appeal papers: 'The Court’s decision noted a number of material errors, starting with clear descriptions that are interpreted or translated incorrectly, to the downgrading of a complex of the work. 'The court did not compare the whole scene at all elements, but he pulled the individual parts! In this way, the bit violated all the rights of the Appellant’s, violated the law and the tests that were performed were not executed in the right way.'

Motherboard reports that the Trans-Pacific Partnership (TPP) trade agreement negotiations have resumed, and a "troubling" provision has come to light. The United States government is using an enhanced version of the provision known as "certification," which allows it to change other countries' domestic obligations at will. This has internet freedom activists worried that the US may enforce draconian copyright laws globally. The Times (Saturday 16.08.14) also had a warning from celebrity chef Jamie Oliver that the TPIP could downgrade high food safety standards in the UK - to rules that prohibit food grown and reared using pesticides, hormones, carcinogens and dodgy additives were watered down to help US farmers and food producers - and sate the US need for 'free trade'. Hang on the CopyKat thought - what's THIS TPP - ahhhhh - it's the Trans-ATLANTIC Trade and Investment Partnership - just one letter different - but oceans apart ........... hopefully. 

The Premier League is set to clamp down on 'unofficial' videos of goals in the social media posted on platforms  such as Twitter and Vine - uploaded by fans, stating that they break copyright laws. Premier League’s director of communications Dan Johnson told the BBC that it is developing technologies like gif crawlers and Vine crawlers to stop the behaviour saying "You can understand that fans see something, they can capture it, they can share it, but ultimately it is against the law. And here's a question - is that videos ripped from Sky TV, BT Vision or the BBC - or their own videos - taken (usually) on mobiles? And does it matter? More from Eleonora over on the IP Kat: http://ipkitten.blogspot.co.uk/2014/08/uploading-goal-videos-online-copyright.html .

Can you be sued over a properly acknowledged literary quote?

Well, the answer seems to be 'yes'.

As reported by The Hollywood Reporter, this is indeed what has happened to Sony, which has been sued (along with a group of unnamed film exhibitors) by the owners of the rights to the literary works of The Sound and the Fury author, William Faulkner. 

The lawsuit, which was filed on 25 October last in the US District Court for the Northern District of Mississippi, concerns unauthorised use of a quote from Faulkner's Requiem for a Nun in Woody Allen's 2011 film Midnight in Paris. 

As cinema-loving readers will know, the film follows the adventures of nostalgic Hollywood screenwriter Gil Pender (Owen Wilson) who, while on holiday in Paris with his fiancée and her family, finds himself going back to the 1920s every day at midnight, thus meeting the great artistic characters of that time, including Ernest Hemingway, Francis Scott Fitzgerald and his wife Zelda, Picasso, Dalì, and Gertrude Stein.

In describing his experiences, Gil speaks the following lines: "The past is not dead. Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

"Copyright is never dead.
Especially if it's not even past."

Apparently neither Sony nor its co-defendants had sought prior permission to use Faulkner's original quote ("The past is never dead. It's not even past."), so now the Faulkner estate is seeking relief (as well as damages) under the Copyright Act and the Lanham Act. The plaintiff claims that use of both the quote and Faulkner's name in the film "is likely to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to a perceived affilitation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand", and also "to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to the origin, sponsorship, or approval of Sony's goods, services or commercial activity by William Faulkner and/or his written works."

As observed by Courthouse News Service (which usually refrains from commenting on litigation in the story in which the lawsuit is reported) "at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done." 

A Sony spokesperson said: “This is a frivolous lawsuit and we are confident we will prevail in defending it. There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit."

Also this blogger believes that, in relation to the copyright infringement claim, use of Faulkner's quote is quite a clear case of fair use, also because, contrary to what seems now the position under EU copyright law, the actual length of the protected extract taken has still some relevance under US law. However, in copyright-times like these you never know what is going to happen. What seems certain is that this is a case worth fighting, as also suggested by Techdirt.

Weird Al joins digital royalties battle

CMU Daily reports that Weird Al' Yankovic is the latest artist to file a digital royalties claim in the US, in a wide ranging royalties lawsuit that accuses Sony Music of improper reporting of its costs, of failing to pass on any of the damages it won from file-sharing companies like Kazaa, and of paying him a record sale royalty on download sales when such revenues should be treated as licensing income. He joins Toto in the latest assault on the major, who had recently settled (subject to court approval) the 2006 lawsuit launched by The Allman Brothers, Cheap Trick and others which would see artists receive a 3% increase in their share of download revenue and a lump sum payment. Meanwhile EMI faces litigation on this issue from Kenny Rogers, and Warner Music from Sister Sledge and Tower Of Power.

Whilst obviously (and perhaps unsurprisingly) less than impressed with the Allman Brothers' class settlement, it’s interesting to see that Yanovic (like Rogers) also wants to know why he hasn’t received a share of monies received by Sony from P2P litigation, or from the equity stakes the major has taken in digital start-ups, particularly as his track ‘White & Nerdy” was parodied on YouTube and repeatedly streamed with the lawsuit claiming that "A portion of Sony's equity share in YouTube is directly apportionable and allocable to 'White & Nerdy' as well as other content created by Yankovic".

Sony and Cheap Trick agree settlement in digital royalty dispute

It seems that Sony and a group of artistes including Cheap Trick, the Allman Brothers and The Youngbloods have come to an agreed settlement in their dispute over the appropriate royalties Sony BMG should be paying the artistes – the label want to pay a ‘per unit’ royalty for each sale as they would with vinyl and CDs - with various deductions meaning the royalty is reduced to a faction of the sale price - with the artistes arguing that their proper share was one half of all digital licensing income, less only publishing royalties.

The settlement, proposed by the plaintiffs in a court filing, has yet to be approved by the court, but proposes that Sony will pay its recording artists a total of $7.95 million to resolve outstanding claims in the case. Lawyers’ fees alone will account for $2.5 million of this (the case has been running since 2006). The deal also provides for a 3 percent “bump” in artists' royalty rates with respect to digital income – seemingly acknowledging that digital royalties should be higher than those for physical product. My previous post on the recent Kenny Rogers claim over his royalties highlighted some of the more unsavoury activities of labels when it comes to reducing artiste royalties. A substantial portion of the pot, if approved, will go to artists who had at least 28,500 total downloads on Apple's iTunes: A much smaller share has been set aside for artists whose download levels weren't very significant.

More at Billboard

Closing the window – but have the little birds flown?

Readers of this blog may or may not be aware that almost ever since radio, and then television, became the music industry’s most important marketing tools, record labels and artists have used what seems to be an ever extending time period between releasing a track to the media and actually selling discs (and now downloads) to the consumer to promote the song and the sound recording. For the last few years, as rampant peer to peer file swapping and illegal downloading seriously decimated record label’s profits, many commentators have warned the labels that the ‘I want it now’ generation – brought up in a digital world of instant gratification - Google, Youtube, Spotify, We7 - simply won’t play the waiting game, however hard the labels try.

Now Sony and Universal have finally decided to give in - by making legal downloads available on the same day that tracks hit the radio airwaves. With labels have sometimes waiting up to six weeks between starting promotion and releasing tracks to customers the writing was definitely on the wall for the practice – enhanced by the idea that if the digital customer can’t buy then they might just might ‘steal’. Universal Music CEO David Joseph seemed to acknowledge this saying "what we were finding was the searches for songs on Google or iTunes were peaking two weeks before they actually became available to buy ... meaning that the public was bored of - or had already pirated new singles". Sony, which will begin its "on air, on sale" policy simultaneously with Universal Music next month, had massive success by immediately releasing X factor winner of Matt Cardle's single When We Collide as the TV series ended. It sold 439.000 digital copies in the UK – and Jessie J’s single “Do it like a Dude” was also released to radio and consumers on the same day – reaching No 5 in the charts last week.

Interestingly, Sony and Universal have both notified Ed Vaizey, minister for culture and the creative industries of the move. It will be interesting to see what the film industries make of the move – and whether or not we will see a shift in release patterns to cinemas, DVD and television to try to beat the pirates.

http://www.guardian.co.uk/business/2011/jan/16/universal-sony-music-singles-release