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Wednesday, December 16, 2009

A report published last week in the Toronto Star by Professor Michael Geist of Canada’s University of Ottawa claims a copyright case under the Class Proceedings Act of 1992 may see the country’s largest players in the music industry facing upwards of C$6 billion in penalties.

The case is being led by the family and estate of the late jazz musician Chet Baker; moving to take legal action against four major labels in the country, and their parent companies. The dispute centres around unpaid royalties and licensing fees for use of Baker’s music, and hundreds of thousands of other works. The suit was initially filed in August last year, but amended and reissued on October 6, two months later. At that point both the Canadian Musical Reproduction Rights Agency (CMRRA) and Society for Reproduction Rights of Authors (SODRAC) were also named defendants.

January this year SODRAC and CMRRA switch sides, joining Baker et al. as plaintiffs against Sony BMG Music, EMI Music Canada, Universal Music Canada and Warner Music Canada. David A. Basskin, President and CEO of CMRRA, with a professional law background, stated in a sworn affidavit that his organisation made numerous attempts over the last 20 years to reduce what is known as the “pending list”, a list of works not correctly licensed for reproduction; a list of copyright infringements in the eyes of the Baker legal team.

The theoretical principle of the list is to allow timely commercial release while rights and apportionment of monies due are resolved. Basskin complains that it is “economically infeasible to implement the systems that would be needed to resolve the issues internally”. And, “[…] for their part, the record labels have generally been unwilling to take the steps that, in the view of CMRRA, would help to resolve the problem.”

The Baker action demands that the four named major labels pay for and submit to an independent audit of their books, “including the contents of the ‘Pending Lists'”. Seeking an assessment of gains made by the record companies in “failure or refusal to compensate the class members for their musical works”, additional demands are for either damages and profits per the law applicable in a class action, or statutory damages per the Copyright Act for copyright infringement.

This forms the basis for Professor Geist’s six billion dollar calculation along with Basskin’s sworn testimony that the pending lists cover over 300,000 items; with each item counted as an infringement, the minimum statutory damages per case are CA$500, the maximum $20,000.

Basskin’s affidavit on behalf of CMRRA goes into detail on the history leading up to the current situation and class action lawsuit; a previous compulsory license scheme, with poor recordkeeping requirements, and which, had a decline in real terms to one of the lowest fees in the world, was eventually abolished and the mechanical license system introduced. The CMRRA went on to become a significant representative of music publishers and copyright holders, and the pending list an instrument to deal with situations where mechanical rights were as-yet not completely negotiated. Basskin’s affidavit claiming the list grew and circumstances worsened as time progressed.

The Mechanical Licensing Agreement (MLA) between the “majors'” industry body, an attached exhibit to the affidavit, is set to expire December 31, 2012; this is between CMRRA and the Canadian Recording Industry Association (CRIA). With the original MLA expiring at end September 1990, CMRRA negotiated more detailed terms and a “code of conduct”. Subsequent agreements were drawn up in 1998, 2004, 2006, and 2008.

Basskin asserts that the named record company defendants are the “major” labels in Canada and states they “are also responsible for creating, maintaining and administering the so-called “Pending Lists” that are the subject of the current litigation”; that, specific to publishing, divisions of the four represent the “‘major’ music publishers active in Canada”. Yet the number of music publishers they represent has decreased over time due to consolidation and defection from the CRIA.

Geist summarizes the record company strategy as “exploit now, pay later if at all”. This despite the CMRRA and SODRAC being required to give lists of all collections they represented to record labels, and for record labels to supply copies of material being released to permit assessment of content that either group may represent interested parties for. Where actual Mechanical License Agreements are in place, Basskin implies their terms are particularly broad and preclude any party exercising their legal right to decline to license.

Specific to the current Mechanical Licensing Agreement (MLA) between the CMRRA and the CRIA; a “label is required to provide an updated cumulative Pending List to CMRRA with each quarterly payment of royalties under the MLA.” The CMRRA is required to review the list and collect where appropriate royalties and interest due. Basskin describes his first encounter with pending lists, having never heard of them before 1989, thus:

Alain Lauzon, General Manager of Canada’s Society for Reproduction Rights of Authors, Composers and Publishers (SODRAC) submitted his followup affidavit January 28, 2009 to be attached to the case and identify the society as a plaintiff. As such, he up-front states “I have knowledge of the matters set out herein.” Lauzon, a qualified Chartered Accountant with an IT specialisation, joined SODRAC in 2002 with “over 20 years of business experience.” He is responsible for “negotiation and administration of industry-wide agreements for the licensing of music reproduction and distribution”; licensing of radio and online music services use is within his remit.

Lauzon makes it clear that Baker’s estate, other rightsholders enjoined to the case, SODRAC, and CMRRA, have reached an agreed settlement; they wish to move forward with a class proceeding against the four main members of the CRIA. He requests that the court recognise this in relation to the initially accepted case from August 2008.

The preamble of the affidavit continues to express strong agreement with that of David Basskin from CMRRA. Lauzon concurs regarding growing use of “pending lists” and that “[…] record labels have generally been unwilling to take the steps that would help to resolve the Pending List problem.”

With his background as an authority, Lauzon states with confidence that SODRAC represents “approximately 10 to 15% of all musical works that are reproduced on sound recordings sold in Canada.” For Quebec the figure is more than 50%.

Lauzon agrees that the four named record company defendants are the “major” labels in Canada, and that smaller independent labels will usually work with them or an independent distribution company; and Basskin’s statement that “[t]he responsibility to obtain mechanical licenses for recordings manufactured and/or released in Canada falls with the Canadian labels by law, by industry custom, and by contractual agreement.”

Wikinews attempted to contact people at the four named defendant CRIA-member record labels. The recipient of an email that Wikinews sent to Warner Brothers Canada forwarded our initial correspondence to Hogarth PR; the other three majors failed to respond in a timely fashion. Don Hogarth responded to Wikinewsie Brian McNeil, and, without addressing any of the submitted questions, recommended a blog entry by Barry Sookman as, what he claimed is, a more accurate representation of the facts of the case.

Sookman is a lobbyist at the Canadian Parliament who works in the employ of the the Canadian Recording Industry Association (CRIA). Hogarth gave no indication or disclosure of this; his direction to the blog is to a posting with numerous factual inaccuracies, misdirecting statements, or possibly even lies; if not lies, Sookman is undoubtedly not careful or “very qualified” in the way he speaks on the issue.

Sookman’s blog post opens with a blast at Professor Geist: “his attacks use exaggeration, misleading information and half truths to achieve his obvious ends”. Sookman attempts to dismiss any newsworthiness in Geist’s article;

As the extracted [see right] stamp, date, and signature, shows, the court accepted amendments to the case and its submission, as Professor Geist asserts, on October 6. The previously mentioned submissions by the heads of CMRRA and SODRAC were indeed actions within the past year; that of SODRAC’s Alain Louzon being January 28 this year.

Sookman continues his attack on Professor Geist, omitting that the reverse appears the case; analysis of his blog’s sitemap reveals he wrote a 44-page attack on Professor Geist in February 2008, accusing him of manipulating the media and using influence on Facebook to oppose copyright reform favourable to the CRIA. In the more current post he states:

This characterisation of the pending list only matches court records in that it “has been around for decades”. CMRRA’s Basskin, a lawyer and industry insider, goes into great detail on the major labels resisting twenty years of collective societies fighting, and failing, to negotiate a situation where the labels take adequate measures to mechanically license works and pay due fees, royalties, and accrued interest.

What Sookman clearly overlooks is that, without factoring in any interest amounts, the dollar value of the pending list is increasing, as shown with the following two tables for mid-2008.

As is clear, there is an increase of C$1,101,987.83 in a three-month period. Should this rate of increase in the value of the pending list continue and Sony’s unvalued pending list be factored in, the CRIA’s four major labels will have an outstanding debt of at least C$73 million by end-2012 when the association’s Mechanical Licensing Agreement runs out.

Sunday, September 5, 2010

The Office of Gas and Electricity Markets (Ofgem), the regulator of the electricity and gas markets in Great Britain, has launched an investigation into four of the largest British energy suppliers over suspicions that they not be complying with face-to-face and telephone sales regulations. The four organisations facing scrutiny could be fined up to 10% of their annual turnover if it is found that they are breaking sales regulations. Scottish Power, npower, Scottish and Southern Energy and EDF Energy are all to face questioning by the organisation.

Ofgem has urged customers of the four companies to alert the energy regulator, “if they are concerned about the sales approach any domestic suppliers have taken when selling energy contracts, either face-to-face or by telephone,” according to a statement. “As part of the investigation process Ofgem will examine any evidence of non-compliance and consider whether there are grounds for exercising enforcement powers.”

New regulations on sales tactics by energy suppliers were recently introduced, and, Ofgem has said, energy suppliers must be “proactive in preventing misselling to customers both face to face and over the phone. Also, if suppliers are selling contracts face to face they must provide customers with an estimate before any sales are concluded. In most circumstances customers should also receive a comparison of the supplier’s offer with their current deal.” Only one in five consumers consider energy suppliers to be trustworthy, and 61% of people feel intimidated by doorstep sales people from energy companies. According to the organisation Consumer Focus, “complaints have declined since new rules came into effect this year, but suppliers still seem to be flouting the rules. Some customers are still being given misleading quotes and information, which leave them worse off when they switch provider.”

The newspaper The Guardian has reported that “householders are reporting that sales agents working for the energy suppliers are giving them misleading information and quotes which leave them worse off when they switch supplier.” Consumer Focus has said that if energy companies continue to break the rules, they could be banned from doorstep-selling completely. The report goes on to say that “new figures from helpline Consumer Direct show that while the number of complaints has fallen since last year, about 200 cases of mis-selling are being reported each month.” However, Scottish Power said it insists on “the highest standards possible for all of our sales agents”, and npower told the Financial Times that it was “confident that the processes we have in place mean that we comply with our regulatory obligations”. EDF added that it was “fully compliant with all obligations regarding sales of energy contracts”.

According to the regulator, the obligations are serious and must be followed by energy supplies, or they will face “tougher sanctions than those available under more general consumer protection law.” Ofgem has published a guide advising consumers what they should do should an energy salesperson contact them in person of by telephone. Improper sales tactics are still common in the industry—in 2008 an Ofgem investigation found that 48% of gas customers and 42% of electricity customers were worse off after switching supplier on the doorstep. Npower was fined £1.8 million in 2008 by the organisation, and Ofgem insists that they are “committed to taking action” over improper sales activities by energy companies. “Suppliers have existing obligations to detect and prevent misselling and new licence conditions were brought in following our probe to further increase protection for customers,” said Andrew Wright, a Senior Partner of the regulator. “We expect all suppliers to comply with these tougher obligations but if our investigations find otherwise we will take strong action.”

Head of energy at Consumer Focus, Audrey Gallacher, called the investigation “a welcome step … to address years of customers getting a bad deal on energy prices on their doorstep. While many doorstep sales people will do a good job, the pay and rewards system continues to encourage mis-selling, despite years of regulation and voluntary initiatives. If better advice for customers and enforcement of the tougher rules doesn’t end the flagrant abuse of this form of selling the big question will be whether it should be completely banned.” Christine McGourty, director of Energy UK, which represents the leading gas and electricity companies, said that “the companies involved will collaborate with the Ofgem investigation and are awaiting further details from the regulator. Any sales agent in breach of the code will be struck off the approved energy sales register.” Which? chief executive, Peter Vicary-Smith, has said he considers the situation “shocking”, saying that the investigation “will do nothing to improve consumer trust in energy suppliers. We’re pleased that Ofgem has promised tough measures against any firms guilty of mis-selling. We hope it uses this opportunity to tighten rules around telesales so they are in line with those for face to face sales.”

SNP Westminster Energy spokesperson Mike Weir MP, however, said that the investigation “does nothing to tackle the real problem of fuel prices which leave many Scots facing great difficulty in heating their homes … Rather than tinkering around the edges Ofgem should be looking at how to reduce prices for vulnerable households.” Gareth Kloet, Head of Utilities at Confused.com, one of the UK’s biggest and most popular price comparison services, also welcomed the inquiry. “It is unacceptable for energy companies to mislead customers like this,” he said, adding that Confused.com has previously “urged energy providers to either stop the practice of doorstep selling or make it very clear to households that better deals are available online. There is no reason why door-to-door salesmen can’t show people online deals and even help households switch to them.”

“Our research reveals customers could end up paying £167 more than they need to as door-to-door salesmen are unable to offer the discounts that are applied online. The changes that have been made to date are a welcome addition to safeguard customers; however this review has been much needed for a long time. Hopefully it will mark the end of customers being overcharged and missold,” Kloet continued. “Our message to energy consumers remains the same: they should shop around online to make sure they’re getting the best deal possible and turn these salesmen away.”

Thursday, June 23, 2011

NASA’s Cassini–Huygens spacecraft has discovered evidence for a large-scale saltwater reservoir beneath the icy crust of Saturn’s moon Enceladus. The data came from the spacecraft’s direct analysis of salt-rich ice grains close to the jets ejected from the moon. The study has been published in this week’s edition of the journal Nature.

Data from Cassini’s cosmic dust analyzer show the grains expelled from fissures, known as tiger stripes, are relatively small and usually low in salt far away from the moon. Closer to the moon’s surface, Cassini found that relatively large grains rich with sodium and potassium dominate the plumes. The salt-rich particles have an “ocean-like” composition and indicate that most, if not all, of the expelled ice and water vapor comes from the evaporation of liquid salt-water. When water freezes, the salt is squeezed out, leaving pure water ice behind.

Cassini’s ultraviolet imaging spectrograph also recently obtained complementary results that support the presence of a subsurface ocean. A team of Cassini researchers led by Candice Hansen of the Planetary Science Institute in Tucson, Arizona, measured gas shooting out of distinct jets originating in the moon’s south polar region at five to eight times the speed of sound, several times faster than previously measured. These observations of distinct jets, from a 2010 flyby, are consistent with results showing a difference in composition of ice grains close to the moon’s surface and those that made it out to the E ring, the outermost ring that gets its material primarily from Enceladean jets. If the plumes emanated from ice, they should have very little salt in them.

“There currently is no plausible way to produce a steady outflow of salt-rich grains from solid ice across all the tiger stripes other than salt water under Enceladus’s icy surface,” said Frank Postberg, a Cassini team scientist at the University of Heidelberg in Germany.

The data suggests a layer of water between the moon’s rocky core and its icy mantle, possibly as deep as about 50 miles (80 kilometers) beneath the surface. As this water washes against the rocks, it dissolves salt compounds and rises through fractures in the overlying ice to form reserves nearer the surface. If the outermost layer cracks open, the decrease in pressure from these reserves to space causes a plume to shoot out. Roughly 400 pounds (200 kilograms) of water vapor is lost every second in the plumes, with smaller amounts being lost as ice grains. The team calculates the water reserves must have large evaporating surfaces, or they would freeze easily and stop the plumes.

“We imagine that between the ice and the ice core there is an ocean of depth and this is somehow connected to the surface reservoir,” added Postberg.

The Cassini mission discovered Enceladus’ water-vapor and ice jets in 2005. In 2009, scientists working with the cosmic dust analyzer examined some sodium salts found in ice grains of Saturn’s E ring but the link to subsurface salt water was not definitive. The new paper analyzes three Enceladus flybys in 2008 and 2009 with the same instrument, focusing on the composition of freshly ejected plume grains. In 2008, Cassini discovered a high “density of volatile gases, water vapor, carbon dioxide and carbon monoxide, as well as organic materials, some 20 times denser than expected” in geysers erupting from the moon. The icy particles hit the detector target at speeds between 15,000 and 39,000 MPH (23,000 and 63,000 KPH), vaporizing instantly. Electrical fields inside the cosmic dust analyzer separated the various constituents of the impact cloud.

“Enceladus has got warmth, water and organic chemicals, some of the essential building blocks needed for life,” said Dennis Matson in 2008, Cassini project scientist at NASA’s Jet Propulsion Laboratory in Pasadena, California.

“This finding is a crucial new piece of evidence showing that environmental conditions favorable to the emergence of life can be sustained on icy bodies orbiting gas giant planets,” said Nicolas Altobelli, the European Space Agency’s project scientist for Cassini.

“If there is water in such an unexpected place, it leaves possibility for the rest of the universe,” said Postberg.