More Updates

There has been some developments with a few of the issues I have posted on recently so I thought just to add a few links here for those wishing to read more:

1. In Tune
Following the release of a ten minute clip by MIPI in which some Australian artists discuss the difficulties they face in the music industry today, one of those interviewed has raised concerns about his inclusion in the anti-piracy film. Lindsay McDougall of the punk group Frenzal Rhomb stated he was "completely taken out of context and defamed" by the inclusion of his statements, indicating that had did not support the major labels claims against file sharing networks and users:

"I would never be part of this big record industry funded campaign to crush illegal downloads... I think it's bullshit, I think it's record companies crying poor and I don't agree with it."

The concerns I raised about this and other education campaigns directed at children are also relevant to recent reports that a children’s charity Childnet is to be used as the vehicle for the distribution of an IFPI anti-piracy publication in 21 countries.


2. From Little Things Big Things Grow
I also wrote recently about a new single released in Australia following the official apology to the Stolen Generation. The Get Up campaign was to make the song a hit and this week it debuted at number 4 on the ARIA singles chart and number 2 on the digital downloads chart. Inspired by the Yes We Can song and clip released as part of the Barack Obama US Presidential campaign, the executive director of Get Up, Brett Solomon stated:

"One of the things it shows is that a song with a message and substance is rewarded in the charts equally as much as pop and froth."

Of course, as I have posted in the past, sales are not in themselves an indication of the authenticity of a track, however as the money from the sale of the single is being directed back into the reconciliation movement this achievement does reflect support for the cause within the wider Australian community. As noted by Get Up, these sales were achieved without the assistance of the massive marketing campaign usually associated with high selling singles.


3. Making Available
There has been some very interesting developments since my earlier post on the Elektra v Barker case in the United States. In that case the court considered arguments by the recording industry that simply making a file available in a shared folder, accessible on a file sharing network, was sufficient to establish copyright infringement. The court concluded that this amounted to an offer to distribute, that the terms distribution and publication as used in the Copyright Act were interchangeable and thus a case of this nature could be brought.

More recently in the case of Atlantic v Howell however, a court denied summary judgement to the recording industry, stating:

The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public... Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.

The EFF reports that the court held downloads conducted by Media Sentry, the investigators engaged by the recording industry, do not demonstrate that the files were illegally distributed. While this case is yet to go to trial and this aspect of the case will no doubt be appealed, the decision is another step in the move to challenge the litigation strategy of the recording industry.

This follows the Tanya Anderson case where the court approved expert examination of Anderson’s computer only to discover no evidence of piracy. The recording industry were effectively forced to withdraw their claims and costs of $300,000 were awarded against them.


4. Spinning DJs
A further report on the triple J’s Hack Program regarding the new license from ARIA for DJs to format shift music for gigs was also released during the week. Stephen Peach of ARIA declined an invitation to speak about the licence however another DJ was interviewed, raising further concerns. Brenda (DJ) raised the added complication of record labels asking DJs to download promotional mp3s to play at clubs and the legalities of then burning those downloads to CDs.

Whislt I consider it highly unlikely that a case would be brought simply on the basis of unlicensed promotional music this does raise an added complication for those seeking to use promotional music in clubs. It highlights the difficulties in policing the use of music in this way and when considered in the light of the need for DJs to also hold a license from APRA and the per person charges placed on venues where the music is played, disregards the long term benefits to artists and record labels in having their music played to the public and the ability for this to lead to further sales.


For more information on these issues and to catch up on developments in others, see the monthly post to Open Content Australia – http://www.ocaustralia.blogspot.com .

Further Reading
TechDirt, Recording Industry Funds Charity To Run Its Latest Brainwashing Program (2 May 2008) <http://www.techdirt.com/articles/20080430/090922985.shtml> at 3 May 2008

BBC News, Charity advice on music downloads (30 April 2008) <http://news.bbc.co.uk/2/hi/technology/7375621.stm> at 3 May 2008

TechDirt, Musician Claims He Was Tricked Into Appearing In Anti-Piracy Video (1 May 2008) <http://www.techdirt.com/articles/20080501/035740998.shtml> at 2 May 2008

Sydney Morning Herald, Musician 'duped' into anti-piracy video (1 May 2008) <http://www.smh.com.au/articles/2008/04/30/1209234943373.html> at 2 May 2008

New York Times, In Australia, From Apology, a Hit Song Grows (29 April 2008)
<http://www.nytimes.com/2008/04/29/world/asia/29australia.html?_r=2&ref=world&oref=slogin&oref=slogin> at 3 May 2008

Sydney Morning Herald, Rudd, Keating and crew storm pop charts (29 April 2008) <http://www.smh.com.au/news/music/rudd-keating-and-crew-storm-pop-charts/2008/04/28/1209234762143.html> at 3 May 2008

CNet News, Court rejects RIAA's 'making available' piracy argument (29 April 2008) <http://www.news.com/8301-10784_3-9932004-7.html> at 2 May 2008

TechDirt, Court Rejects RIAA's 'Making Available' Theory In Infamous Howell Case (29 April 2008) <http://www.techdirt.com/articles/20080429/125025979.shtml> at 2 May 2008

EFF Deeplinks, Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory (29 April 2008) <http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rejects-making> at 30 April 2008

ArsTechnica, Judge deals another blow to RIAA's making available theory (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-judge-deals-another-blow-to-riaas-making-available-theory.html> at 30 April 2008

BusinessWeek, Does She Look Like a Music Pirate? (24 April 2008) <http://www.businessweek.com/print/magazine/content/08_18/b4082042959954.htm> at 30 April 2008

Triple J, Hack (30 April 2008) <http://mpegmedia.abc.net.au/triplej/hack/daily/hack_wed_2008_04_30.mp3> at 3 May 2008