Friday 28 October 2011, 17:56 | By

Editor’s Letter – Friday 28 Oct 2011

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Andy Malt

This week BT was finally served with the injunction that forces it to block its customers from accessing file-sharing website Newzbin. It’s not really news that would normally be worth reporting in any detail, the case having actually been concluded in July, but the wording of this injunction is interesting.

The UK music industry, despite what many think, has actually been fairly hesitant to launch legal action against file-sharers or those who run websites that help with the file-sharing process.

Aside from a small number of test case lawsuits against a bunch of prolific file-sharers, and some subsequent industry-backed criminal proceedings (most prominently the admittedly unwise action against the operators of the Oink communty), things have been reasonably quiet on that front over here.

Certainly we’ve never seen anything like the mass suing of individual file-sharers we did in the US, or Germany for that matter, nor any major legal actions against the operators of file-sharing networks. True that was partly because none of the major file-sharing companies were based in the UK, but it was also because record label trade body the BPI – to its credit – recognised early on how futile excessive litigation was. It focused its efforts, instead, on lobbying for new laws to force the internet service providers to help combat piracy. And whatever you think of the various file-sharing measures in the Digital Economy Act, they are all surely better than suing 30,000 individual music fans.

Not least because such litigation – aside from the possible PR damage when targeted at individual consumers – is also very expensive. So much so, aside from them strategically deciding that lobbying was more important than suing in response to the file-sharing issue, you couldn’t help but think that record industry leaders over here thought that – if they just waited long enough – as bandwidth speeds increased the film industry might step in and cover the costs of expensive legal action. And that’s what happened with Newzbin.

Although music is available on the file-sharing site, it was the Motion Picture Association that sued the operators of the site and, when they shifted their operations to Sweden to avoid the jurisidiction of the English courts, it was the MPA who took legal action to force BT – as the UK’s biggest ISP – to block access to the file-sharing service.

When the High Court ruled in the MPA’s favour earlier this year – ordering Newzbin to be blocked – some pointed out that such blocks are easy to circumvent because Newzbin will just quickly register a new domain name, or operate from a different IP address. Meanwhile, as this was the first lawsuit of its kind in the UK – no website had previously been blocked on copyright grounds – there were also questions as to who would pay for the cost of instigating the block, and what would happen if BT’s customers complained (as Newzbin, after all, does provide some links to licensed content). Because we were in unchartered waters, we didn’t know if and how these matters would be dealt with, which is why it was interesting when the injunction finally dropped. As it happens, all said matters were dealt with.

Firstly, as well as blocking the site as it stands now, BT must block any IP addresses or URLs used by Newzbin in the future. Meanwhile BT customers will not be allowed to launch their own legal action in relation to the block, because BT’s blocking of the site is already allowed under the terms and conditions of its ISP service.

Perhaps most interesting for rights owners, though, is the money bit. The MPA will not have to cover any costs incurred by BT in setting up this block. In the case of the Digital Economy Act’s main anti-file-sharing system – the graduated response process for warning and then punishing persistent file-sharers – it’s the content owners who will have to cover the bulk of the costs (assuming said process ever actually begins – we found out this week that whole thing had been delayed even further, and the first wave of warning letters will now not go out until at least 2013). But under the injunction system, other than the costs of getting the injunction in the first place, the rights owners will be let off contributing to the ISP’s expenditure.

Now the MPA has gone to the trouble of testing the ground here, we can probably expect other content owners – including the record industry – to apply for similar injunctions in the coming months and years. The big one to get blocked would be The Pirate Bay, which, for all the millions of dollars spent on generally successful legal actions against it, remains very much online.

Will this or any other injunction actually achieve its goal? Well, possibly. Of course those who really want to will still be able to find ways to access Newzbin – or any other blocked website – either (in the short term) by switching to another internet provider or by employing technical measures for accessing blocked websites. But more casual users won’t know how to do that, or won’t bother to try. They might just go and use other illegal file-sharing networks instead, but they might be encouraged to try out a legal online platform (especially if they never realised Newzbin was illegal to start with). So job done. Though, conversely, thanks to the publicity this case has brought it, Newzbin might find it is getting new users from those UK web surfers not using BT to access the net.

Either way, for those who want to, new methods for accessing unlicensed content for free will no doubt materialise, faster than the content companies, their technical partners, the legal system and even the more friendly ISPs can keep up with them. This is the reality of the internet. Which brings me back to that old argument. OK, the British content industries may not have gone as crazy as their American counterparts in their various efforts to combat online piracy, but perhaps the energy they have employed here and there would have been better focused on creating better legal alternatives. And if the US record industry had only invested all the phenomenal levels of effort (and money) it put into suing file-sharers in that way, who knows how good a licenced music service we could now have.

Of course there are some pretty good legal services out there already, some run by the music companies, most by well-funded digital entrepreneurs who have persuaded the record labels and music publishers to play ball. The UK boss of one of them, Deezer’s Mark Foster, recently said he thought a number of the legal platforms now operating will disappear in the coming year. He’s probably right. But I hope quite a few new services arrive too – because while there are some good legal music platforms out there already, I suspect the really good ones are yet to be developed.

For what it’s worth, I think one of the better existing services is Spotify, despite its weaknesses, and my dislike for its recent alliance with Facebook, and those frequent claims of late that the Swedish streaming firm is somehow ripping off artists. Despite there being a lot of love for Spotify, among artists and music fans, in its early days, recently it’s seemed liked some in the music community are as angry about it as they are the illegal alternatives. Many seem to presume that it’s run by evil, greedy people whose main motivation for getting up in the morning is to screw musicians out of cash.

I don’t think that’s true. Their business model is far from proven (and far from clear – it being shrouded in so much secrecy – not entirely their fault, but it does fuel the hater’s concerns), but Daniel Ek and his team are, I believe, genuinely interested in trying to find a way of providing consumers – many of whom used to file-share – with a means of accessing music they like and enjoy while also compensating artists for their time and effort. Are they paying enough to the various strands of the music industry? I don’t know. What happens when the venture capital runs out? I don’t know. But at least they are trying to move us all beyond ultimately futile lawsuits and lobbying.

Coldplay, however, don’t agree with me. Or so it seems. It emerged this week that their new album, ‘Mylo Xyloto’, would not be available on Spotify (or most streaming services, but Spotify has taken most of the focus). EMI was non-committal as to why, but many assume the band are hoping to mirror the success of Adele’s ’21’ in terms of conventional record sales, and that record breaking album is also not available on the streaming service. If that is true, presumably the thinking is that when people find a buzzy new album isn’t available on their favourite streaming service, they’ll instead go to iTunes or their nearest HMV and buy it in the old fashioned way. OK, Adele and Coldplay have fanbases perhaps less prone to use file-sharing networks, though said fans are probably less likely to use Spotify too. I suspect many of Coldplay’s Spotify-using fans will be tempted to say “fuck you” and go find their new album from illegal sources. Who knows?

Of course some will say that surely artists should be allowed to decide what services sell their music, and to strike up the deals that best suit them. Tom Waits’ new album, also out this week, isn’t on Spotify either, and perhaps that’s why both he and Coldplay have such prominent placing on the iTunes home page at the moment. Though if the music industry really wants to take the digital revolution to the next level, where “file-sharing is killing music” paranoia can be put to bed once and for all, I’m not sure letting the biggest artists opt out is going to help. Industry analyst Mark Mulligan also published an interesting blog post on this very topic this morning, so if you want to look at all this in more detail I suggest you head there now.

But blimey, so much else happened this week. Let’s have a quick look at all that too.

First up, the High Court (them again) decided that Morrissey’s libel lawsuit against the NME should be allowed to proceed to trial. The singer claims that the magazine, and specifically its then editor Conor McNicholas, doctored comments he’d made in a 2007 interview to make him sound like a racist. NME publisher IPC earlier this month attempted to have the case thrown out on the grounds that he’d taken four years to sue and seen no damage to his reputation in that time. However, the judge said that there was just reason for it to continue and Moz’s explanation for taking so long to begin proeedings was “credible”.

A wrangle that now won’t go to court is the case of children’s charity Rhythmix against ‘X-Factor’ group Rhythmix. The charity was shocked when the group announced their name last month, even more so when the makers of ‘X-Factor’ applied to register the trademark in the music space. The charity wrote to the TV programme’s producers pointing out the likely chance of confusion. Team ‘X’ advised the organisation to get a good lawyer. However, this week a personal appeal from the charity’s chief exec to Simon Cowell himself seems to have done the trick. The group will now be known as Little Mix.

Still in the courts, but in LA now, and the defence in the Conrad Murray trial began making their case. Things didn’t start with quite the bang of the prosecution’s testimonies, and some defence witnesses seemed to do more harm that good. Still, we got some insight into Michael Jackson’s relationship with prescription drugs (particularly Demerol), the behind the scenes dealings for his ill-fated O2 Arena residency, and Murray’s apparently kind and generous character.

Also this week, the results of the inquest into Amy Winehouse’s death in July were announced (though not before the copy meant for her family was sent to the wrong address). Her death was attributed to the high levels of alcohol in her system (five times the drink drive limit), built up over a number of days after a three week period of abstinence.

And elsewhere, the race to buy EMI continued, with rumours spreading that BMG and Warner are now favourites to split the company between them, and that Universal is out of the running.

In the world of CMU features, we this week interviewed record producer Steve Levine about the past, present and future of music production, Eddy Temple-Morris had some advice for any struggling musicians out there, and new pop musician Archeo picked out ten of his favourite tracks for us.

In the CMU Approved slot, we had top music blog Gorilla Vs Bear’s new Halloween mix, plus music from Pyramid Vritra, Ghost Wave and Tremoro Tarantura. Elsewhere, we saw Duck Sauce become genitals in their quite disturbing new video, heard new music from The DOT (aka the Streets’ Mike Skinner and The Music’s Rob Harvey), and sampled brand new tracks from Zomby, Busdriver, Active Child, and Make Do And Mend.

And in this week’s podcast, Chris and I can be found discussing Morrissey’s libel case against the NME, the injunction to force BT to block Newzbin, Google’s still not launched download store, the Conrad Murray trial, and Rhythmix (both of them).

Andy Malt
Editor, CMU

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