iiNet High Court Case Dismissed

The Australian High Court has today handed down its decision in the iiNet copyright case, dismissing the appeal and holding that the ISP, iiNet, did not authorise copyright infringement. The case concerned the use of BitTorrent to download and share films under copyright.

The appellants, AFACT, contended that: "iiNet's technical and contractual relationship with its customers gave it the indirect power to control the use of its services – that is, to prevent continuing primary infringements (through warnings, suspension of services and termination of contractual relations)..." [at 58]  "[T]he appellants' case on authorisation ultimately was that iiNet could not avoid secondary infringement unless it implemented a system designed to achieve the removal of infringing material by iiNet customers from the BitTorrent clients on those customers' computers..." [at 59].

iiNet argued however, "that authorisation cannot be determined on the basis that particular factors – such as knowledge or a power to prevent – are either present or absent. Rather, iiNet relied on the language of s 101(1A) and emphasised that each of those factors is a matter of degree, and that a court must consider the extent to which each factor exists before determining whether a person's 'inactivity or 'indifference, exhibited by acts of commission or omission, [has reached] a degree from which authorization ... may be inferred'". [at 61] 

With respect to the technical aspects of the BitTorrent protocol, the court held: "It is important to note that iiNet has no involvement with any part of the BitTorrent system and therefore has no power to control or alter any aspect of the BitTorrent system, including the BitTorrent client. Further, iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material[72]. iiNet does not assist its customers to locate BitTorrent clients or .torrent files by any indexing service or database entries[73]. It cannot monitor the steps taken by users of its internet services under the BitTorrent system, it cannot directly prevent users of its internet services from downloading a BitTorrent client or .torrent files, and it cannot identify specific films to which users of its internet services seek access. Once infringing material is stored on a customer's computer iiNet cannot take down or remove that material, and cannot filter or block the communication of that material over its internet service. Nor has iiNet any power to prevent its customers from using other internet services – and, as noted earlier, several users of an internet service may share an IP address. Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants' films on that customer's computer with the result that the appellants' films were made available online in breach of s 86(c)." [at 65]

The court noted that the information provided to iiNet from AFACT regarding breaches of copyright was not of a standard sufficient to support civil proceedings and that iiNet could have been held to be in breach of contract by its customers had it terminated their accounts. [at 75] Furthermore, iiNet's lack of activity following the receipt of the information from AFACT about copyright breaches did not demonstrate the degree of indifference required to give rise to authorisation. iiNet was unwilling to act because of the risks associated with taking action solely on the basis of information provided by AFACT and was under no obligation to employ staff or conduct further investigation itself. [at 76]

This was a unanimous decision.

Further Reading
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (20 April 2012) 

Australian Copyright Council, Landmark Judgment on Authorisation of Copyright Infringement (20 April 2012) < http://www.copyright.org.au/news-and-policy/details/id/2060 > at 20 April 2012

Gotye

I wanted to draw your attention to a clip I have just seen of a political song from Gotye called Eyes Wide Open. The song has been around for a while but I never really paid attention to the lyrics until recently. There is also an interesting clip from Gotye on how the album Making Mirrors was recorded with an interesting reference to sampling vinyl in the process of recording:

Creative Activism: an open class for media creators and change makers

I came across this website recently - Creative Activism: an open class for media creators and change makers - it is the website of a course that was run at the Coventry University in the UK. I was particularly interested to listen to the lecture given by Chris Jury from Agitpop, a community radio show on political music. You can listen to it here: Guest Lecture: Agitpop – Protest and Social Change in Popular Music – Chris Jury the power point slides and the list of songs played on the radio show are also available, as are the shows themselves - on the Agitpop Blog. The lecture was given on 7th February 2012 and in it Jury states that in his opinion, political music can and does change the world. He suggests that there is a theory of dialogical cultural transmission in which people, political ideas and culture interact in a perpetual cycle. Jury states that culture can never be content neutral and that political songs have an honesty to them because they are commonly clear about the ideology and ideas they seek to promote. For Jury, protest songs both create and change the world. He makes reference to Dorian Lynskey's book 33 Revolution Per Minute (which I have written about here) and goes on to discuss some of the political songs he has played on his radio show and their background. This is well worth the listen - it goes for an hour - it is very interesting and canvasses the intersection between pop and political activism.

Draft Terms of Reference for the Australian Law Reform Commission Reference on Copyright

The Australian Attorney-General, Nicola Roxon, has today announced the Draft Terms of Reference for the Australian Law Reform Commission Reference on Copyright Law. Submissions are open until 27th April 2012. Amongst other things, the ALRC is to consider whether further exceptions should be provided to:

• facilitate legitimate use of copyright works to create and deliver new products and services of public benefit; and 
• allow legitimate non-commercial use of copyright works for uses on the internet such as social networking.

The review is not to duplicate work already being undertaken with respect to the  unauthorised distribution of copyright materials using peer to peer networks; the scope of the safe harbour scheme for ISPs; a review of exceptions in relation to technological protection measures; and increased access to copyright works for blind and visually impaired people.

I strongly recommend readers make a submission in support of the legitimate non-commercial uses of copyright works on the internet as Australia does not have fair use but rather specific fair dealing provisions that at this point do not allow for the use of material on social network sites. You could also include in your submission the need for a sampling right - I propose that all creators should be able to sample up to 5 seconds of existing work without the need to license - this would be particularly relevant and useful for mashups including film and music.

You can find more about the Draft Terms of Reference here.  Unless otherwise specified submissions will be made public.

Submissions should be sent to the Attorney-General’s Department via email: copyright@ag.gov.au (preferred method), fax: 02 6141 3488 or mailed to:

Assistant Secretary

Business Law Branch

Attorney-General’s Department

Robert Garran Offices

3-5 National Circuit

BARTON ACT 2600

John Street, Music and Politics (2012)

I just finished reading the new book from John Street titled ‘Music andPolitics’. It is a very interesting book looking at the relationship between music and politics and politics and music. He argues that they are an extension of each other and that contrary to popular opinion they do not collide occasionally but are intimately entwined with each other. Street suggests that ‘music embodies political values and experiences and organises our response to society as political thought and action’ [pg 1].

Street begins with the example of Simon Bikindi who was charged with incitement to commit genocide in the United Nations International Criminal Tribunal for Rwanda through his composition of music that inflamed hatred toward Tutsi’s and notes that while he was not ultimately held responsible on that count (instead imprisoned for 15 years for a speech that he gave along the same lines) that there were inevitably questions as to whether music could be seen as a catalyst for genocide [pg 2-3]. Another example is that of a song in South Africa that the Constitutional Court ruled that the South African Broadcasting Corporation should not be played on air as it was an incitement to hatred and violence [pg 3]. Similarly, Street notes the banning of all music by the Taliban in Afghanistan.

Street quotes Lord Redesdale from the English House of Commons who stated in March 2011: “I believe it is a human right to have unamplified music’ [pg 5]. He goes on to refer to Tia De Nora and her book ‘Music in Everyday Life’ who states that music forges a relationship between ‘the polis, the citizen and the configuration of consciousness’ and notes that music is much more than decorative art but rather a powerful medium of social order that ‘constitutes identities and articulates emotions that empower people’ [pg 5].

In Chapter 1, Street considers the censorship of music, drawing on the McCarthy House of Un-American Activities Committee and how this led to a temporary end to the careers of the likes of Pete Seeger; he also refers to the injunction against drag artist Simon Hunt for his song ‘I’m a backdoor man’ that mocked Australian politician Pauline Hanson and how that case has very serious implications for satire and free speech [pg 12-14]. Street notes that in the context of privately owned media there can be ‘market censorship’ [pg 15-16]. He also notes the Supreme Court decision in Schad v Borough of Mt Ephraim in the United States that held music to be protected as free speech under the First Amendment.

In Chapter 2, Street examines music policy and its effect on free speech and politics by looking at the Digital Economy Bill in the UK that required ISPs to report and act on piracy with critics stating that it was a gross infringement of civil liberties and human rights [pg24]. Street goes on to note the varying goals of government policy with respect to music:

• The need to reflect audience tastes and interests and to support citizen welfare in the production and consumption of local popular music
• Nation building both at a national and international level
• National identity
• Diversity of both venues and music genres and performers
• Delivering economic security to the nation’s music industry
• Social and cultural diversity
• Realising ideas of freedom and choice, and
• Enhancing democracy [pg 30-31]

In Chapter 3 Street goes on to look at how sound itself communicates politically, noting the tendency to reduce the political communication of music just to lyrics and words. He suggests that the political nature of music can also be communicated through voices, rhythms and melodies [pg 42]. Street then considers the way that musicians, in this case he uses the examples of Bono and Bob Geldof, are elevated to the position of spokesperson and how they gain the authority to speak on political issues as representatives of the people [pg42]. Street suggests that there are two ways that musicians become involved in politics – either through acquiring a public presence or statues which they use to support causes; or by using music to express their political values [pg 45]. Street suggests that political songs are not that common with most popular songs being about love [pg 46]. He suggests that internet architecture such as MySpace has increased the ability to distribute political music but that in real terms not much has changed [pg 47].

Street suggests there are six factors that need to be considered:

1. The context – social and political events produce music that reflects on the times [pg 50]
2. The personal – the personal history and circumstances of the performers is important [pg 50]
3. The institutional – social movements, political parties and the institutional regimes impact on the connection between music and politics [pg 52 – 53]
4. Political communication – musicians performing as politicians, politicians trying to win the popularity contest through endorsements from musicians and through their own personal connection with music (e.g. Bill Clinton and his saxophone) [pg 53-54]
5. Musical approach – the way that the music industry tries to keep musicians away from politics or supports their engagement with issues [pg 55]
6. Genre approach – how genres set conventions and open up or close down connections with politics – pop musicians with no credibility cut down for their involvement where as folk musicians are applauded for it [pg 56-57]

For musicians that do engage in political representation there are also a number of factors in play – particularly the strategic management of their image, their style as a political activist and the fact that representation is both political and aesthetic in nature and depends on symbolic gestures and accountability [pg 58]. The claim is that musicians are somehow in touch with the views of the people that follow them and the world they inhabit, that they produce a sense of community and that the audience can live through the political representation by the artist leads to the empowerment of fans giving them the optimism, invigoration and passion to change the world [pg60].

In Chapter 4 Street considers events such as Live 8 – Make Poverty History in July 2005 and Rock Against Racism and how movements and music work together to create change.

In Chapter 6 Street talks of the lived history of music and how the sounds embody the sentiments and events of their times.

Chapter 8 examines connection between ideology and music with an historical examination of how the likes of Plato, Aristotle, Thomas Hobbs, John Stuart and Karl Marx consider the relationship between music and politics.

Chapter 9 reflects on the overall themes of the text and considers how music allows us to experience and understand the lives of others [pg 165] and produces internal deliberations [pg 167].

I found this to be a very useful book and would well recommend reading it – it considers some very interesting points regarding the connection between music and politics and articulates the inter relationship between the two very well.

Review of Australian Contract Law

On the 22 March 2012, the Australian Attorney-General, Nicola Roxon, announced a review into Australian Contract Law. The discussion paper released by the Government considers whether Australian contact law could be reformed to:

• enhance accessibility, certainty and simplicity
• set standards of conduct
• better support innovation and participation in the digital economy
• better meet of the evolving needs of businesses particularly small and medium businesses
• make the law more elastic to promote long-term relationships, and
• harmonise and internationalise contract law. 

I would personally like to see reform that would prevent exceptions to copyright law from being contracted away on a non commercial basis but I am not sure how I would work that argument into these areas. Other points to consider would be the complexities and liability arising from End User License Agreements, most of which are incomprehensible and rarely read.

If you would like more information about the review or would like to make a submission you can read more about it here - the review is open for a period of 3 months with submissions due 20 July 2012.

Further Information
Australian Attorney-General Department, Review of Australian Contract Law (22 March 2012) < http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Review-of-Australian-Contract-Law.aspx > at 29 March 2012

Australian Hight Court on Terrestrial Radio Royalties

Just in - the Australian High Court has confirmed that the Copyright Act 1968 validly imposes a 1% royalty rate on commercial radio. The decision in Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors [2012] HCA 8 (28 March 2012) states that the Australian Government, by legislating the 1% royalty rate, did not in fact acquire the property of the recording copyright holders on unjust terms. The music industry were angling for an increase in the royalty rate noting that it has not changed in 48 years. According to the Australian Copyright Council the Howard Government had announced that they would increase the rate in 2006 but the amendments put forward never contained these provisions. I read from an Artist's Twitter post this morning that in other countries the royalty rate is in the vicinity of 3-5% and in their opinion a small increase would have well reflected the change in commercial broadcast value over time. It is a disappointing decision for the music industry and comes on the back of a recent decision that internet streaming by radio stations does not attract a separate royalty payment.

Further Reading
Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors [2012] HCA 8 (28 March 2012) < http://www.austlii.edu.au/au/cases/cth/HCA/2012/8.html > at 28 March 2012

Australian Copyright Council, High Court Upholds 1% Cap on Broadcast Royalties for Sound Recordings (28 March 2012) < http://www.copyright.org.au/news-and-policy/details/id/2056/ > at 28 March 2012

Future of Music Coalition: Artist Revenue Stats

Just a note to point out that the Future of Music Coalition have begun releasing the stats from their Artist Revenue Project - most recently publishing the data for their ARS Financial Case Studies.

There are five case studies - a Jazz Bandlear/Composer; an Indie Rock Composer/Performer; a Jazz Sideman/Bandleader; a Professional Orchestra Player and a Contemporary Chamber Ensemble member.

They state: "Drawing from 4-12 years of accounting data provided by the artists, each case study graphs and explains their musician-based sources of income over time. The reports also include annual revenue pies, and a look at income versus expenses and net profit over time. Some case studies also include more detailed breakdowns, such as PRO royalties by territory, or session work by bandleader."

You can read more about it here:
Future of Music Coalition, Music By The Numbers: ARS Financial Case Studies Released (19 March 2012) < http://futureofmusic.org/blog/2012/03/19/music-numbers-ars-financial-case-studies-released > at 21 March 2012

Anti-Flag: This Is The New Sound – Amnesty International

Amnesty International and Pittsburgh rock band Anti-Flag are working together to raise awareness of indefinite detention. "This is the New Sound" is a new video from Anti Flag and is another example of music and politics working together in a campaign to change policies and practices.

The clip highlights the importance of human rights and whilst taking a more light hearted approach through the use of puppets, seeks to draw attention to the plight of those being held in prison and in particular President Obama's promise to shut down Guantánamo Bay.

Take a look at the clip here:



Further Information
United States Institute of Peace, "Anti-Flag -- "This Is The New Sound" – Amnesty International (March 2012) < http://peacemedia.usip.org/resource/anti-flag-new-sound-%E2%80%93-amnesty-international > at 21 March 2012

33 Revolutions Per Minute

Dorian Lynskey, 33 Revolutions per Minute: A history of protest songs from Billie Holiday to Green Day (2011)

I have just finished reading this book – well I read all but two chapters – there are 33 chapters in total that explore the history of protest music with a focus on the United States and England but also with chapters on each of Chile, Nigeria and Jamaica. What a fantastic read – get it and take a look at it if you can.

The book focuses on the social context and political events of each era with each chapter focusing on a specific song and then discussing other silimar songs and artists of that time:

Part 1

Chapter 1: Billie Holiday, “Strange Fruit”

Chapter 2: Woody Guthrie, “This Land is Your Land”

Chapter 3: Zilphia Horton, Frank Hamilton, Guy Carawan, and Pete Seeger, “We Shall Overcome”

Chapter 4: Bob Dylan, “Masters of War”

Chapter 5: Nina Simone, “Mississippi Goddam”

Part 2

Chapter 6: Country Joe and the Fish, “I-Feel-Like-I’m-Fixin’-to-Die Rag”

Chapter 7: James Brown, “Say It Loud – I’m Black and I’m Proud”

Chapter 8: Plastic Ono Band, “Give Peace a Chance”

Chapter 9: Edwin Starr, “War”

Chapter 10: Crosby, Stills, Nash, and Young, “Ohio”

Chapter 11: Gil Scott Heron, “The Revolution Will Not Be Televised”

Chapter 12: Stevie Wonder, “Living for the City”

Part 3

Chapter 13: Victor Jara, “Manifesto”

Chapter 14: Fela Kuti and Afrika 70, “Zombie”

Chapter 15: Max Romeo and the Upsetters, “War Ina Babylon”

Part 4

Chapter 16: The Clash, “White Riot”

Chapter 17: Carl Bean, “I Was Born This Way”

Chapter 18: Linton Kwesi Johnson, “Sonny’s Letah (Anti-Sus Poem)

Chapter 19: The Dead Kennedy’s, “Holiday in Cambodia”

Chapter 20: Grandmaster Flash and the Furious Five feat. Melle Mel and Duke Bootee, “The Message”

Chapter 21: Crass, “How Does it Feel”

Chapter 22: Frankie Goes to Hollywood, “Two Tribes”

Chapter 23: U2, “Pride (In the Name of Love)”

Chapter 24: The Special AKA, “Nelson Mandela”

Chapter 25: Billy Bragg, “Between the Wars”

Chapter 26: R.E.M., “Exhuming McCarthy”

Part 5

Chapter 27: Public Enemy, “Fight the Power”

Chapter 28: Huggy Bear, “Her Jazz”

Chapter 29: The Prodigy feat. Pop Will Eat Itself, “Their Law”

Chapter 30: Manic Street Preachers, “Of Walking Abortion”

Chapter 31: Rage Against the Machine, “Sleep Now in the Fire”

Chapter 32: Steve Earle, “John Walker’s Blues”

Chapter 33: Green Day, “American Idiot”

While this book cant be said to cover the field with respect to the history of political music, it does a damn fine job of it. It is almost like reading history through the eyes of the music of the time. Major themes and events include:

· Civil Rights Movement

· Industrial Relations

· Vietnam War

· Jamaican Independence and Politics

· Apartheid

· Homosexuality

· Irish Politics

· Environmental Issues

· Feminism (Riot Girrl)

· Thatcher, Regan and Bush

The book is well researched and well written and absolutely worth reading. There is also a list in the Appendices of 100 recommended protest songs in addition to those discussed in each chapter. The book discusses the history of each artist, other artists of each era and comments on the changing prevalence of protest music over time with a particular view that protest music has died in modern times. Genres of music are considered – from folk music, rock, punk disco, hip-hop to techno, and the level of engagement of artists in each genre with protest songs and political issues is considered in detail. This is fantastic book, I highly recommend it!