US court rejects latest attempt by Cox Communications to overturn billion dollar judgement in labels case
The court that oversaw the record industry's big legal battle with US internet service provider Cox Communications - which resulted in the net firm being ordered to pay the major record companies $1 billion in damages - has ruled that developments in a similar case involving another ISP are not grounds for revisiting that billion dollar judgement.

Cox had cited developments in the music industry's litigation against Charter Communications in one of various attempts to get the ruling in its dispute with the record companies overturned.

The major labels originally sued Cox in 2018 - in the wake of another lawsuit successfully pursued by BMG - arguing that the ISP had a deliberately shoddy system for dealing with repeat infringers among its customer base. That meant the net firm could not rely on the copyright safe harbour to avoid liability for the copyright infringement occurring on its networks. The jury considering the case agreed - hence the billion dollar damages.

Cox has been trying to get that judgement overturned ever since. In part by arguing that the labels never actually proved that Cox customers infringed their copyrights. Because if you can't prove any Cox customers directly infringed music controlled by the record companies, you can't hold Cox liable for any contributory copyright infringement.

That particular argument has focused on the operations of the anti-piracy agency employed by the labels, which is MarkMonitor. And this particular attempt to get the billion dollar judgement overturned relates to a hard drive of unlicensed music gathered from the Cox networks by MarkMonitor which was used as evidence when the case was in court.

That hard disk contained metadata suggesting those music files had actually been downloaded in 2016. Which would be a problem, because the specific infringement the music companies sued over took place between 2012 and 2014.

When that came up during the original case, MarkMonitor insisted that the 2016 metadata was there because the files had been copied from the disk on which they were originally stored - between 2012 and 2014 - to a new hard disk in 2016.

Cox wanted to investigate that explanation further, and requested "source code and revision history information" from MarkMonitor to assess the reliability and credibility of the evidence it had provided. However, at the time MarkMonitor said that there was no source code and revision history information to share.

But then, last year, in the related legal battle between the music industry and Charter Communications, MarkMonitor revealed that it had, in fact, now found some relevant source code and revision history. And that, Cox reckoned, changed everything.

"The recently disclosed MarkMonitor source code and revision history data constitute 'newly discovered evidence' which may give rise to relief", Cox told the court in January. So much so, it said, the court should either "enter an indicative ruling … stating that it is inclined to grant Cox's motion for relief from the judgment, or - at a minimum - that Cox's motion raises a substantial issue that warrants further consideration by this court".

Responding, the labels argued that, for tedious technical reasons, the dates on the hard disk of infringing files were irrelevant, meaning the new data recently unearthed by MarkMonitor had no bearing on the case.

"The dates of file downloads simply do not matter in the context of this case because, as fully explained to the jury, files with matching hash values are identical regardless of when downloaded", the labels said in a filing with the court last month.

"This was a foundation of MarkMonitor's detection system. And it was on this basis that the jury appropriately found direct infringement by Cox subscribers, whom MarkMonitor detected sharing files with hash values that matched hash values of confirmed infringing files".

"Cox received the agreement describing what MarkMonitor did, knew the hard drive files had 2016 metadata, and even challenged the evidence before and during trial, on the same failed basis advanced again here", the labels went on.

"Thus, Cox had every opportunity to explore these issues and conduct robust cross-examination in depositions and at trial in fully and fairly presenting its defence".

And judge Liam O'Grady basically agrees with the labels on all of this. Technically speaking the specific dates on the hard drive aren't relevant, plus Cox could have more rigorously pursued this line of argument during the actual court case, rather than after the fact. And the new data from the Charter case doesn't change any of that.

In a new judgement, O'Grady states: "The Charter code relates to how MarkMonitor stored data from Audible Magic's identification of the contents of suspected infringing files. MarkMonitor utilised Audible Magic so that MarkMonitor could develop a database of known infringing files, identified by their unique hash value".

"Thereafter, MarkMonitor would identify ISP subscribers engaging in infringement by observing them distributing a known infringing file, identified by its unique hash vale. That these files may have been downloaded and verified in 2016 - after the claims period - is of no consequence".

"Indeed, the dates of the file downloads do not matter in the context of this case because, as fully explained at trial, files with matching hash values are identical regardless of when downloaded".

Plus, "Cox previously had every opportunity to explore these issues and ample evidence by which to put on a defence. The court finds that the Charter code is not material here".

Expanding on that decision, he adds: "Given the ongoing litigation in the similar case ... defendants may well be rethinking and reevaluating their previous trial strategies. Even still, the court does not doubt that defendants received a full and fair trial here".

"The jury had ample and relevant evidence by which to render their verdict", he concludes. "The court finds that there is no need to 'relieve a party ... from a final judgement' because the newly discovered evidences is not material, nor is it likely to produce a new outcome if the case were retried".

So, Cox Communications can shut up with its moaning. Well, in this court. The ISP's appeal in the Fourth Circuit appeals court continues.

BACK TO THE TOP OF THE BULLETIN

Capitol Records files new lawsuit against ReDigi founder over unpaid damages
Universal Music's Capitol Records filed a new lawsuit earlier this month in a bid to secure the damages it was awarded in its long-running legal battle with MP3 resale site ReDigi. Although it initially beat ReDigi in court in 2013 - with the digital company subsequently running out of appeal options in 2019 - the major is still to be paid most of the $3.5 million in damages it is due.

Back when digital music was mainly about downloads, ReDigi operated an MP3 marketplace where people could sell on unwanted second hand digital music files.

The company argued that this was no different to people selling on second hand CDs which copyright law allows, because - although under most copyright systems a record company has control over the first issuing or distribution of a copy of a recording - it has no control over future distribution. In the US this is known as the 'first sale doctrine'.

However, the record companies were quick to argue, when someone sells on a second-hand CD no additional copying of the recording occurs. However, by definition, when a digital file moves from one computer to another over the internet, that recording is being reproduced.

And that reproduction needs a licence. Without such a licence, ReDigi and its users are liable for copyright infringement. Although the record industry was pretty much in agreement on this point, it was Capital Records - then still an EMI label - that went legal via the New York courts in 2012.

For its part, ReDigi pushed back, in part on the basis that its technology somehow guaranteed that the seller of the MP3 could not retain a copy after a resale had occurred.

But that didn't really counter the core argument of the labels, that ReDigi was facilitating the copying of recorded music without licence - which is copyright infringement - and the first sale doctrine does not apply to the reproduction of digital files.

The courts initially sided with Capitol - by then part of Universal Music - in 2013 and then again on appeal in 2018, with damages being set in between those two court hearings in 2016. ReDigi tried to take the case to the US Supreme Court in 2019, but the highest court in the land declined to consider the dispute. This meant that the ReDigi company and its founder John Ossenmacher remained liable for the $3.5 million in damages.

However, three years before the Supreme Court declined to hear the case, shortly after the lower court confirmed the damages that were due, both ReDigi and Ossenmacher filed for bankruptcy, claiming to have more or less no assets and more than $6 million in debts. Which kind of suggested Capitol was unlikely to ever get its damages.

However, the major persisted. And, along the way, it seems, discovered that shortly after the damages were set by the court in 2016, Ossenmacher was involved in a property deal that netted him nearly $3.5 million. But this was all allegedly hidden from the courts.

In a new legal filing made earlier this month and published by Billboard yesterday, the label says: "By the time that plaintiffs' judgment was entered against Ossenmacher on 3 Jun 2016, Ossenmacher had acquired the contractual right to purchase and to sell a ... valuable half-acre parcel of real estate in Palm Beach County, Florida, called 'Hogarcito'".

"At the end of June 2016 - a mere three weeks after a federal court in New York adjudged him liable to plaintiffs for $3,500,000 - Ossenmacher assigned his contractual rights to buy and sell Hogarcito to a Florida land trust. Ossenmacher created that land trust and made those assignments with the specific intent to hinder, delay and defraud his creditors, including plaintiffs".

"As a result of his 'flip' of the Hogarcito property", the new lawsuit goes on, "Ossenmacher realised a profit of approximately $3,447,564.13, nearly all of which ended up in his hands, directly or indirectly, or in the hands of his insiders, including his long-time co-habitating girlfriend, Julia Mellerski (alias Julia L Miller, alias JL Miller, alias Julia Ossenmacher)".

"Ossenmacher, with the assistance of a Florida lawyer, documented the buy-sell transactions to conceal his personal involvement with and interest in the property at issue, primarily by involving a land trust that had a remote, sham entity controlled by Ossenmacher as its sole beneficiary, and by causing his son to be the 'frontman' for the ultimate transaction".

Capitol Records, it seems, became aware of all this in 2020 and, according to Billboard, it began legal proceedings that year in both Florida and California - states where it was thought Ossenmacher resided - the aim being to get court confirmation that the property deal was, in fact, a fraudulent transfer of assets, and that the profits from that deal should be handed over to the label to satisfy the damages claim.

This new lawsuit with the courts in Florida seemingly builds upon and supplants that earlier litigation from 2020. Ossenmacher is yet to respond.

BACK TO THE TOP OF THE BULLETIN

Disturbing London allies with The Orchard
Sony Music's label services business The Orchard has announced a new partnership with Disturbing London, the label set up by Tinie Tempah and his manager Dumi Oburota. The latter also becomes a Global A&R Consultant to the Sony division under the deal.

Disturbing London previously had a partnership with Warner Music's Parlophone. Under the new deal, and I quote, "Disturbing London's entire artist roster will have access to The Orchard's suite of artist and label services". Aside form Tinie Tempah himself, that roster also includes Yxng Bane, WIZ 36IX, The Indien, Elevated, Eight9FLY, Honeywood6 and Chucks.

Confirming the new tie-up, Oburota says: "Artists these days want to have a level of ownership and independence and The Orchard is the best in the game. They have built a great global business. It's booming. This move brings me back to my core beliefs: development, songs, partnerships, globalisation and disruptive innovation".

Meanwhile, The Orchard MD Ian Dutt adds: "Dumi brings to The Orchard a wealth of music industry knowledge and a passion for developing talent which makes him the perfect addition to The Orchard family. He is a vested international player who has a key creative vision and insightful strategy in the ever-changing entertainment industry, while delivering results".

BACK TO THE TOP OF THE BULLETIN

GRM Daily celebrates five million YouTube subscribers with special content
GRM Daily yesterday kicked off a week of special content to celebrate passing five million subscribers on YouTube. The celebratory videos are going live each evening this week, with Ghetts and Central Cee getting things started yesterday, with new content as part of the media platform's Daily Duppy freestyle strand and Crep Check fashion-centric series.

Other artists due to appear over the week include: Blake & K Trap, Mercston, Potter Payper, Scorcher, LD, AJ Tracey, Tion Wayne, Krept & Konan, M Huncho & Alhan, and Lethal Bizzle, the latter in a new Car Check video on Saturday.

Commenting on the five million subscriber landmark and this week's special content, GRM Daily founder Posty says: "I'm grateful to see how far we have come and excited to know where we are going. To celebrate this milestone, it was only right to welcome some of the artists that have contributed to our channel's growth with an amplified version of our staple show Daily Duppy. Daily Duppy has grown to be one of the biggest freestyle shows in the world and we are more than proud that it's a part of the GRM Daily brand".

Meanwhile, YouTube's Sheniece Charway adds that GRM Daily "is more than just a YouTube channel, it's a cultural institution and a staple of black British music today. We're THRILLED to celebrate this momentous milestone and continue our longstanding support of GRM as they in turn champion generations young and old. Here's to the next five million and beyond".

BACK TO THE TOP OF THE BULLETIN

Mira Calix dies
Producer, composer and artist Mira Calix has died, her label Warp has confirmed. She was 52.

"We are devastated to learn about the death of our dear Mira Calix", said the label. "Mira was not only a hugely talented artist and composer, she was also a beautiful, caring human who touched the lives of everyone who had the honour of working with her".

"Mira has been a huge part of Warp's family and history, as one of the first female artists signed to the label and releasing six albums from 'One On One' in 2000 to 'Absent Origin' in 2021", it went on.

"We are so proud of her immense creative output; her artwork, videos and music were a true reflection of what an innovative, pioneering and wonderful soul she was", it continued. "She pushed the boundaries between electronic music, classical music and art in a truly unique way. She will be terribly missed by everyone at the label, staff and artists alike".

Born Chantal Passamonte in South Africa in 1970, Calix moved to London in 1991, working at a record shop, then the 4AD record label and then Warp, where she was originally a publicist before signing to the label as an artist. She released her debut album, 'One On One', in 2000.

Originally making electronic music, she then began integrating classical instrumentation into her work, collaborating with the London Sinfonietta in 2003.

Her creative projects subsequently branched out into installations, theatre, dance and more, making work that managed to be both experimental and inclusive. For example, in 2016, she created Moving Museum35 - a sound artwork installed on a commuter bus in Nanjing, China, which ran for three months.

In recent years, she also returned to making music released through more traditional means, including her 2019 EP 'Utopia', which was her first release on Warp for a decade, and last year her final album, 'Absent Origin'.

--------------------------------------------------

IMPALA reveals 100 independent artists to watch
The pan-European organisation for the independent music community - IMPALA - has announced a new programme called 100 Artists To Watch, which will put the spotlight each spring on independent artists making music across Europe. The new scheme - supported by YouTube - replaces IMPALA's previous album of the year award.

The first 100 Artists To Watch list features music-makers from 30 different countries and more than 30 different genres, and includes UK artists like AJ Tracey, Arlo Parks and Little Simz, plus Kojaque, Noga Erez, Brodka and Whispering Sons. You can check the full list on the IMPALA website here.

Launching the new programme, IMPALA Executive Chair Helen Smith says: "IMPALA's remit is to boost diversity across Europe, so it's great to be introducing this new programme with YouTube. The idea is to help shine a light on the range of talent the independent sector works with in Europe".

Meanwhile, YouTube's Dan Chalmers adds: "The independent sector is a key partner for YouTube and we are really excited about our collaboration with IMPALA on 100 Artists To Watch in Europe. YouTube gives creators and artists a platform to reach the world and enables them to get noticed across borders".

BACK TO THE TOP OF THE BULLETIN

APPOINTMENTS

Copyright hub ICE has recruited Govinda Fichtner as CTO. He joins from web hosting company IONOS. "With over fifteen years experience in building cloud-based solutions, I am really looking forward to applying this experience to create a very strong technology foundation for the future of ICE", he says.

The music licensing platform for online creators, Lickd, has announced a number of recent hires including Jon Bowman, who moves over from Nintendo to become E-commerce Director; Roshni Patel - formerly of Universal Music, though most recently with Skin + Me - who becomes Finance Director; and marketing consultant Olly Lynch who becomes Marketing Director.

Music licensing and rights management platform Synchtank has appointed Janet Kirker as Chief Product Officer. "This is such a pivotal time for the entertainment industry, particularly when it comes to managing IP", she says. "You must be smart and nimble, and Synchtank is both. I'm excited to help build upon the company's reputation as the leading B2B SaaS solution for the music, media, and production entertainment sectors".

Round Hill Music Nashville has appointed Mike Whelan to the position of Senior Vice President and General Manager. "Mike is a proven senior executive with a stellar track record of success", says CEO Josh Gruss. "He is highly respected within the music industry and we are proud to have him on our team".

--------------------------------------------------

MEDIA

Music collaboration and data app Session has announced the launch of new video podcast 'In Session With...", which will feature interviews with a variety of music industry figures, including promoter Harvey Goldsmith, singer-songwriter Laura White, session drummer Joe Lazarus, producer and songwriter Steph Marziano, and Abbey Road mastering engineer Christian Wright. Episode one is live now. Here's a trailer.

--------------------------------------------------

RELEASES

Willow has released the video for 'Purge', featuring Siiickbrain. The song will hit audio streaming services on Friday.

Meg Myers has released new single 'HTIS', from her new album 'Children Of Light II', which is out on 6 May. "'HTIS' was inspired by becoming more acquainted with my subconscious mind", she says. "It's about taking off the mask, exposing the insecurities and imperfections, and allowing it all to be OK".

--------------------------------------------------

GIGS & TOURS

Anne-Marie and Paloma Faith have been added to the line-up of tonight's Concert For Ukraine, which will air live on ITV and STV.

Roxy Music have announced that they will tour together for the first time in eleven years this autumn to mark their 50th anniversary. In the UK they will play Hydro in Glasgow on 10 Oct, the AO Arena in Manchester on 12 Oct and The O2 in London on 14 Oct.

The Gaslight Anthem have announced that they will tour the UK and Ireland in August this year, kicking off with a performance at Wembley Arena in London on 18 Aug.

The Pretty Reckless will tour the UK for the first time in five years this October and November, finishing at Brixton Academy on 5 Nov.

Chloe Moriondo has announced UK tour dates in August, kicking off at Heaven in London on 24 Aug. Her new EP, 'Puppy Luv', is out on 8 Apr. From it, this is 'Sammy'.

--------------------------------------------------

AWARDS

The nominations have been announced for this year's Music Producers Guild Awards, which take place on 9 Jun. Up for the big old Producer Of The Year prize are Dave Eringa, Inflo and Marta Salogni. Check all the shortlists here.

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

BACK TO THE TOP OF THE BULLETIN

Grimes announces "intergalactic children's metaverse book"
Grimes has announced plans to release an "intergalactic children's metaverse book". It was only a matter of time.

The musician revealed her plans while speaking at blockchain conference the Avalanche Summit in Barcelona, according to Bitcoin.com. The project is being created in partnership with NFT app OP3N.

"When I first got into Web3, this was the kind of project I was hoping to see", she said. "I'm very excited to be partnering with OP3N to launch a series of educational art for babies and small children with the goal of creating a profound experience for babies that is also deeply meaningful to adults".

So, hey, there's a nice little attempt to make Web3 seem like a thing that is cute and fluffy and something people might actually want or need.

BACK TO THE TOP OF THE BULLETIN