Tuesday 16 August 2011

DGM HQ A grey day

08.19

DGM HQ.

A grey day along the valley. Morning reading…

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09.37    Alex is in with Buddy the Wonder Dog, who has been walked in the DGM Park before being allowed into the office.  I am well used to being pissed upon by a cute white rabbit, but by a cute little dog is a squirt too far.

In the filing cabinet, folders of terror and wonderment…

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… all part of the voluminous EG Archive. Researches on Mr. SG Alder’s offshore company, Ikenstock, at the time of Endless Grief…

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… and astonishingly: An Examination Of Royalty Accounting Records of EG Music Ltd. On Behalf Of Bryan Ferry And Companies 1/10/88 Through 30/9/90…

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This is a highly confidential document, and very informative. It would perhaps have surprised Mr .Alder that this was in my hands, as Bryan and his advisers are subject to a gagging order and unable to discuss any of the details regarding royalty payments during the Unfortunately We Are Not At Present In A Position To Be Able To Pay Royalties To Your Client Period (1989-91). This is only one of the highly prejudicial EG-related documents that arrived, in an unmarked brown envelope, during the early 1990s.

From happier times…

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… SG Alder Esq. writes: Looking forward to another interesting year together. Perhaps neither of us anticipated how many interesting years lay ahead.

Shortly down the country road to Wimborne…

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20.52    Collecting the Sistery Person at 10.31 and into Wimborne Town. First visit to Betty Wyatt, Mother of Suzy and Barbara, old Winburnian pals. Then to collect Alan Cosgrove from the former Fripp World HQ…

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… and to lunch at No. 9 (& on Facebook)

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… formerly a sweetshop on the way to the Tivoli cinema, regular visiting-spots from our youth.

Car problems in the parking lot and a call to the RAC. They didn’t know me from my address, despite an RAC man visiting there two weeks ago and a membership for 48 years. A second call to the RAC found a helpful person at the other end of the line, one who was able to determine that, yes, I have been a member for 48 years and do live at my home address. A local RAC engineer arrived in c. 45 minutes and was very helpful.

A functioning car, and off to Witchampton churchyard I…

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II...

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III...

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… to visit our Parents and Uncle Charlie. On the walk up to the top is the headstone…

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… of George Fred Fripp, died February 13th. 1888 aged 44 years; Selina Fripp, his daughter, died June 29th. 1871 aged 4; and Elizabeth, wife and mother of the above, died March 21st. 1925 aged 87 years.

The car breakdown meant we are now having tea with Poly Legg tomorrow, so I dropped Sistery off at her chum’s house where she is staying, and returned to DGM HQ…

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More checking on filing cabinets, more documents of Endless Grief. Also good discoveries: a post card from my Mother and early letters and cards from the Minxy Love.

Online to the latest arisings and nonsensicals with Grooveshark. Declan Panegyric has written to Mr. Custer, the VP of Grooveshark Legal…

On 16/08/2011 05:15, Marshall Custer wrote:
"suggestions for how we could assist you as you monitor your content and without infringing on the rights of other labels, artists and users.."


Mr Custer,


I have no desire to have any form of conversation about your system.



I can confirm that Robert Fripp & King Crimson have a specific requirement not to feature on the system in any way, shape or form.



This is something your system is clearly quite capable of - as the lack of Pink Floyd & Beatles material clearly illustrates. 



This does not infringe upon the the rights of any other label as King Crimson does not feature on any label, nor do we license digitally to any label of aggregator.



This does not infringe on the rights of any of your users - as none of them has the right to upload King Crimson material. 

The only company affected is Grooveshark.

We have no desire to see Grooveshark grow its business, in part, via illegal streams of our copyrighted material as uploaded by your users.



You can assist us very simply & directly:



Take existing King Crimson & Robert Fripp down from your servers.



Keep it down.



As of this morning, several pieces of King Crimson music remain on your service.



I have been asking for complete removal since I first wrote to Aaron (Mr. Ford the VP of Content Acquisition) & you last week.



Grayzone has sent the official notices, last week & on several previous occasions. 



Nonetheless, the music remains available.



It's impossible to view this persistence in offering material you have repeatedly been informed is protected by copyright & requested to take down as anything other than a violation of those copyrights. 



This needs to be resolved. If you are away, please refer me to someone at Grooveshark who has responsibility for these issues.



Declan


Please note: Robert Fripp often quotes relevant music industry material in his online diary pages to highlight some of the struggles musicians face in trying to get fair recompense for their artistry and work. Should Robert wish to use any of the above such permissions as are necessary are hereby granted by me as author. DC

Even, a second letter…

From Declan Colgan > Marshall Custer

From EMI…
This is the response that I have had from our digital supply team:
 
“All King Crimson and Robert Fripp digital products are unavailable to all partners (they have had rights removed).
 
We have no record of ever delivering any King Crimson or Robert Fripp material to Grooveshark.”
 
Please ask Grooveshark to provide the product identifier that they claim EMI has delivered for this content.

Mr. Custer,



EMI has confirmed that the company offers no King Crimson or Robert Fripp rights digitally.



The company has also confirmed that there is no record of delivery of any of this material to Grooveshark.



Please provide the product marker of any such product you believe has been delivered to Grooveshark by EMI.



Assuming no such product markers are available, this leaves the statement made by your 'director of content acquisition':


"we have a licensing deal with EMI pays out for all King Crimson streams coming from Virgin Records or Caroline Distribution."



We now know this to be false. No such license is in place.


Then there's your statement:



"I am told that King Crimson content has been delivered to us by our label partners"


We also now know that this is false.

No such delivery has taken place.



Whoever told you this within Grooveshark is also misinformed.



What else is wrong at Grooveshark?



We know that artists can be blocked from having "user uploads" appear on Grooveshark when it is desirable for Grooveshark to do so.



We know that, despite multiple DMCA notices and ample opportunity to comply with such notices, a great deal of King Crimson & Robert Fripp material remains available on Grooveshark - whether identified as King Crimson, A King Crimson ProjeKct, Fripp & Eno or various other permutations or collaborations involving Robert that are his copyrights. 



This is correct as of about five minutes ago.


The inevitable conclusion is that that this represents deliberate violations of copyright, that Grooveshark pays lip service to the idea of complying with DMCA, but that the actuality, much like the statements in quotations above from your staff & yourself, is very different.

To Mr. Grayzone: Please serve another DMCA notice on Grooveshark for all King Crimson & Robert Fripp material, copied to me, Robert Fripp, Mr. Custer, Mr. Ford (just in case he still believes he "acquires" this "content" from EMI or one of his other "label partners") & the IFPI. Please forward this correspondence to the IFPI.



Declan

Please note: Robert Fripp often quotes relevant music industry material in his online diary pages to highlight some of the struggles musicians face in trying to get fair recompense for their artistry and work. Should Robert wish to use any of the above such permissions as are necessary are hereby granted by me as author. DC

And a letter from myself to Grooveshark’s VP of Legal Affairs, Mr. Marshall Custer I…

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II...

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General Counsel, VP Legal Affairs
Grooveshark
Privately Held; Music industry
October 2010 – Present (1 year)
Member
Foam Bullets
Music industry
March 2009 – Present (2 years 7 months)
A hobby band with a quality product.

Part of Mr. Custer’s education was at…

University of Colorado at Boulder - Leeds School of Business.
JD/MBA, Finance, Entrepreneurship, Social Responsibility
2006 – 2010
Emphasis on:
- Finance
- Entrepreneurship
- Social Responsibility/Sustainability

An education which emphasises Social Responsibility: this must be our kinda guy!

dear mr. custer,

(you write) Further, we undertake a great deal of projects with our label partners to help them control delivered content.

DGM / Panegyric / KC / RF are not label partners of grooveshark and it is your responsibility to control delivered content when it is unlicensed..

(you write) These efforts are exceedingly labor intensive and require close collaboration with the content holders involved; the costs and logistics of which make it impossible to roll out to all artists and users at this time (see YouTube).  We are however making great strides towards the next generation of highly automated filter systems that we hope will allow content owners to more easily police unauthorized content on UGC and blended services.

i'm not quite sure what you mean by this, but it seems that you are seeking to evade responsibility for continuing to make available material to which you are unable to substantiate proper licensing. which, fairly obviously, you can't.

(you write) If you wish to have a constructive conversation about how our system works...

the problem is, your system doesn't work. the most constructive approach to this is for grooveshark to stop using KC/RF material without permission.

sincerely, rf.

Mr. Custer is a drummer.

21.15    And now a letter from Declan Panegyric to Mr. UMG Outside Lawyer Man…

Sent: Tue, 16 Aug 2011 14:21
Re: Sanctuary/UMG & King Crimson

Dear Mr.UMG Outside Lawyer Man,

Further to Tim Clark’s letter I understand that you have been instructed by Mr. David Joseph at UMG to provide me with the answers to the large number of matters regarding UMG’s multiple infringements of copyrights of material owned by Robert Fripp.

I write as a licensee of this material and as someone who has had a long-standing association with the problems caused by UMG’s unlawful use of parts of the material and of our many unsuccessful attempts to hold UMG accountable for the company’s breaches of said copyrights.

There are a number of distinct elements to this as UMG has, on a number of occasions, chosen to use one part or other of the catalogue unlawfully.

Background:

The infringements cover physical goods and digital offerings.

I write today with regard to one specific episode involving a Sanctuary/UMG 5CD/1DVD release called “From the Beginning” by ELP:

This boxed set was issued in Sept. 2007 by Sanctuary/UMG.The first track on this boxed set is a King Crimson track.This track was included without license. No license was sought by Sanctuary/UMG prior to, or at the time of release.The track was edited (poorly) from a commercial CD.It had to be edited as it was taken from a CD where the track is cross-faded with the track preceding it on the album.The track was faded slightly early, appears to have been further compressed from the original and is also faded slightly at the end.This renders the track sub-standard and misrepresents the manner in which King Crimson material should be presented to the public.The track was falsely identified at the metadata stage for services such as Gracenote, so is identified as “Tarkus” (the name of an ELP piece) by “unknown artist” when used in a PC.The track was given an unidentifiable ISRC code number at the point of mastering. This makes it impossible to provide correct PPL/PRS/performer payments for the track when played on radio from this source.The track was also given an incorrect year of release in the metadata section further falsifying the registration for the CD.The country of origin was also left unidentified in the metadata section.The compiler of the set has confirmed in writing to me that he was instructed to take the track from the commercially released CD by a Sanctuary/UMG staff member.This was further confirmed by the mastering engineer responsible.There are no benign reasons for such a specific set of alterations.The boxed set claims, falsely, that the track appears “under exclusive license from King Crimson” This is not the result of some failure to seek a license. This raises serious suspicions of a planned and deliberate number of steps undertaken to include the track specifically without ever intending to seek a license.

Mr. Tim Smith, a lawyer at Sanctuary UMG, with whom we were already dealing in relation to other instances of copyright breaches involving Sanctuary UMG, finally sought to gain a retrospective license for the set in February 2010.

As the majority of our subsequent dealings in this matter were with Mr. Smith as representative of Sanctuary/UMG his name, necessarily, features repeatedly in any account of events that followed.

All claims from Mr. Smith must be viewed in light of a statement he made to me by phone on 10/12/09. At that time I was trying to get him to enact takedown notices for King Crimson material uploaded by Sanctuary/UMG, material in which Sanctuary/UMG never had any digital rights. (As with many other issues involving UMG, the takedowns were characterised by delays and evasions, with Mr. Smith eventually telling me that the takedowns would take “some weeks”. I contacted Apple directly and the takedowns were completed within 48 hours.) I asked Mr. Smith why Sanctuary/UMG had offered the material for sale in the first instance, as there was no contractual right to digital sales. He responded that “.. a company the size of UMG could not be expected to read or apply the details of  every contract of every catalogue it acquires..” I wrote it down at the time and have quoted it to Mr. Smith in subsequent emails, copied to Mr. Clive Fisher, always without modification or denial from either party.

Mr. Smith claimed initially on 28/1/10:

“a proposed license..” (for the track) “does not appear to have been completed..” as if there was an intent to license.We strongly suspect from the manner in which the track was taken, edited, presented with false metadata and instructed to be used by Sanctuary staff that this claim is false. No such proposed license was initiated. I would contend that the copying and editing of the track was flagrant.

I asked for a copy of the set on 1/2/10.

Mr. Smith claimed to be “trying to get hold of a copy”  on 1/2/10With no sign of the set by 15/2/10, I offered to buy a set from Amazon UK as I had heard nothing from him in the intervening two weeks.

Mr. Smith claimed to have “just received a copy” in response on 15/2/10
I received this on 16/2/10. Having reviewed it I demanded that all stock be withdrawn from sale, pointed out many of the errors detailed above, how misrepresentative of the band’s material this infringement was, how offensive this was, how UMG needed to deal with this “as a matter of some urgency”, that no retrospective license could be granted, how it was obvious that the track had been ripped and poorly edited from a CD and that I did not wish for this to become an interminable issue subject to the delaying tactics previously adopted by UMG, as had happened with other issues of copyright  involving King Crimson.

Delays and obfuscation did happen.
Mr. Smith replied on the same day, 16/02/10 stating that he “would reply where necessary in a day or two..”Mr. Smith also stated that he would ensure “that all stock is put on hold..” (N.B. not destroyed)
As of today 16/8/11, a year and a half later, the boxed set remains available from Amazon UK via a secondary seller ‘A2Z Entertains’, fulfilled by Amazon UK. This seller seems to specialise in overstocks from a variety of sources (including many UMG titles). This appears to replicate our earlier experiences with UMG regarding cheap/secondary sell-offs of stock associated with our prior, also unresolved, complaints about copyright infringements.

There hasn’t been a point in the last 18 months when copies haven’t been available for sale on Amazon UK or in a variety of other territories.

Nothing more was heard from Mr. Smith, so I wrote to him again on 23/2/10 copied to Mr. Fisher, pointing out that he had promised a response “.. in a day or two..”
Mr. Smith responded that he “..thought someone was going to talk to Robert Fripp about this track on the set..” and promised a “reply in detail tomorrow..”This was a meaningless response given that Robert Fripp had been copied on all emails about the infringements and, in any event, Mr. Smith was well aware of Robert’s stance on copyright issues and the rights of artists, having worked at Virgin when Robert was fighting, quite publicly and successfully, for the return of copyrights sold to Virgin following the collapse of E’G.

I wrote to Mr. Smith again on 24/2/10 asking for the title to be deleted, pointing out the continued availability on Amazon UK, summarising concerns to date.
Mr. Smith responded with a holding email and a further promise of response “by the following day”. Chased further on the same day Mr. Smith eventually conceded that “no further copies would be manufactured”.
Mr. Smith responded, in part, on 25/2/10, claiming there were “only 3 copies of the set in the UK” and that he was “gathering numbers” for stock elsewhere held by UMG. Mr. Smith claimed such stock would be destroyed and that he would let us know what numbers were involved.This never happened. No such information was ever provided. No destruction notices were produced.

Mr. Smith claimed also not to know the source used, doubting it was used (if a CD) to avoid a license and that it was likely that whoever used the CD would have assumed a license would have been granted in a section that ended with “To be honest we can do no more than speculate..”Mr. Smith claimed, regarding the false credit that “Obviously we will be removing the credit from the booklet..” as if UMG intended to continue to manufacture, contrary to his claim that no further manufacture would take place.All substantive issues were ignored.

Nothing further was heard from Mr. Smith or anyone else at UMG.

I contacted the compiler and mastering engineer independently. They confirmed their involvement and instructions from Sanctuary to use a CD as a source to master from.

I wrote to Mr. Smith again on 04/03/10 pointing out what the compiler said about instructions from Sanctuary/UMG and summarising our other problems with UMG. Given the nature of the infringements involved and having read his letter to The Guardian about the problems of music piracy/lack of respect for copyrights, I copied Mr. Lucian Grainge on this correspondence.

Robert Fripp also wrote to Mr. Smith, asking him to clarify the how Sanctuary staff came to instruct the compiler/engineer to use a finished King Crimson CD.
Mr. Smith responded on the following day 5/3/10, with words to the effect that he “didn’t know who the product manager was” and that finding out “may take a while..”The product manager was listed clearly on the boxed set. One phone call established that he had been a staff member at Sanctuary at the time of compilation/release and that he continued to work as a consultant for UMG at the time. The compiler and mastering engineer also work regularly with UMG on compilations, while the compiler also acts as a licensee of many UMG catalogue titles. Had we waited for Mr. Smith we may have waited indefinitely, as we have on many other issues, for a response. I informed Mr. Smith of the name of the product manager, giving him no excuse for further delays.
Mr. Smith wrote again on the same day claiming that he understood that sales reported to the royalty dept. were in the region of 1,500, that he was trying to establish how many had been manufactured but that this “is not easy” and, among other things, asked me not to copy Mr. Grainge on further correspondence.I responded that it was perfectly reasonable to copy Mr. Grainge given his public stance on music piracy/respect for the value of copyrights.
Mr. Smith wrote to me again on 10/3/10 claiming that the total sales of the boxed set “since Jan. 2008 is 1057 units..”This sidesteps the obvious fact – and I have been involved in the compilation, preparation and sale of many such archival boxed sets over the years – that approximately 95% of all boxed set sales are sold as pre-orders and ship in the week/month of release.
Mr. Smith also included some comments from Mr. Hammonds – the product manager for the set at Sanctuary. The comments were evasive and unhelpful. Nonetheless, Mr. Smith concluded as a result of this incomplete - if unintentionally revealing – response, that this was all a misunderstanding due to the “Universal takeover”.  This is wholly unsupported by either the questions asked by Mr. Smith or the answers given by the product manager Mr. Hammonds. It’s also worth noting that Mr. Smith had spent a good deal of the previous two and a half years trying to deny that Sanctuary had been taken over by UMG – as that answer suited his purposes when responding to other Sanctuary/UMG infringements of King Crimson material.

George Babbington wrote to Mr. Smith on our behalf on 11/03/10 summarising the problems specifically associated with the boxed set.

The correspondence moved to Mr. Fisher who wrote to Robert Fripp on 16/3/10 repeating many of Mr. Smith’s unsupportable claims - innocent mistake made by Universal, manufacturing records unavailable etc. etc., and then to George Babbington on 19/4/10 claiming that total manufactured was in the region of 6,000 units – while again claiming to be unable to substantiate this with records of manufacture.

I understand MCPS requires record companies to maintain accurate records of manufacture.

Mr. Fisher also offered a derisory figure as proposed settlement of the issue and threatened the use of “outside lawyers who may take a far more aggressive stance.”

Presumably, this is a reference to you?

I was, and remain, unimpressed – faintly bemused even, at the thought of Sanctuary/UMG employing outside lawyers to “take a far more aggressive stance” when Sanctuary/UMG was responsible for the copyright breaches in the first instance.

The proposed settlement figure was later doubled in July 2010 – at a point when UMG was keen to resolve another issue relating to copyright violations when the lead track from Kanye West’s forthcoming album containing an uncleared King Crimson sample was leaked (by UMG according to sources close to the artist).

This offer was also rejected.

I have had cause to write to UMG since then.

In December 2010, I alerted the company to other issues (ongoing downloads made available – of which more in another letter) and have had cause to raise this issue with the company since.

But it remains unresolved.

Questions that require an answer:

Many questions remain and answers are required to the following as a start point:

Is Mr. Smith’s claim about the impracticality of UMG being expected to abide by legally binding contracts official UMG policy?

If not, my having copied Mr. Fisher in emails reporting same as a direct quote, why has he not been challenged on this belief?

How many copies of the boxed set did Mr. Smith discover UMG held in at UMG distributors/facilities outside of the UK?

Were these copies destroyed?

Why did Tim Smith never confirm quantities found/destroyed as promised?

Where are the destruction notices for stock destroyed?

Why is the title so readily available in the UK and abroad if stock was destroyed?

What actions, if any, did UMG take to withdraw unsold stock from the marketplace in the UK and other territories?

What actions, if any, did Mr. Smith and Mr. Fisher take to establish what actually happened and upon what evidence are they relying to come to their conclusions that this was a simple administrative error?

On what basis do Mr. Smith and Mr. Fisher claim that all records relating to manufacture by Sanctuary are lost?

These matters, concerning infringements, were brought directly to the attention of Mr. Grainge, then CEO of UMG UK and a man with a public record of speaking out about the damage caused by music piracy/lack of respect for copyright. What steps, if any, other than referring the matter back to Mr. Fisher and Mr. Smith, did he take to investigate this matter, address the issues raised, or prevent a repeat of the same circumstances?

These matters, concerning infringements, were brought directly to the attention of Mr. Joseph, current CEO of UMG UK and a man with a seat of the BPI Council – a trade body with much to say about matters of music piracy/lack of respect for copyright. What steps, if any, other than referring the matter back to Mr. Fisher and then onwards to you, Mr. Howard, as external lawyer, did he take to investigate this matter, address the issues raised, or prevent a repeat of the same circumstances?

Has your firm, as external lawyers, been appointed to help resolve the issues raised or have you been employed merely as another level of obfuscation, to prevent settlement being reached, to – in the immortal words of Mr. Fisher - “take a far more aggressive stance”?

Conclusion:

UMG relies on assertions made by Mr. Smith and Mr. Fisher to the effect that this was a simple administrative error that occurred during the takeover and that no records of manufacture exist.

The repetition of such claims does nothing to make them any more believable.

The facts of the boxed set as released dismiss all claims that this could have happened by oversight, accident or error.

Tracks are not taken from a finished CD, edited to disguise their point of origin, ascribed false information in the metadata/ISRC/mastering stages, issued with equally false claims about the license, apparently without the involvement or clearance of anyone in the relevant licensing department via simple “oversight”, “accident” or other such administrative error.
Clear instructions were given by a Sanctuary product manager to the compiler and mastering engineer.

To a greater or lesser extent, all three have confirmed this.

This is, by definition, flagrant copyright infringement.

This set was issued by Sanctuary and sold by Sanctuary/UMG.

In the face of indisputable evidence that the track was ripped from a commercially available CD, evidence provided by those most directly involved, UMG lawyers continue to claim otherwise.

Additionally, these actions serve to compromise the publicly stated positions of their CEO – past and current alike - on the need for the laws and values of copyright to be respected.

Claims to have “lost” or “not to have access to” Sanctuary manufacturing records” – claims made by Mr. Smith on a number of occasions relating to Sanctuary in recent years and repeated by Mr. Fisher – are risible.

As this set was manufactured in mid 2007 and issued by Sanctuary/UMG in the wake of the acquisition in September 2007, Sanctuary/UMG is required by law to retain such records for a period of 5 years for VAT purposes.

Should this matter come to court we will be demanding sight of said VAT records.

Perhaps you’d be so kind as to obtain some clear answers from UMG?
Given the substantial amount of time that has already passed and the fact that many of these questions have gone unanswered for such a long period, it is not unreasonable to request that you obtain these answers within 14 days.

Kind regards, Declan Colgan

Please note: Robert Fripp often quotes relevant music industry material in his online diary pages to highlight some of the struggles musicians face in trying to get fair recompense for their artistry and work. Should Robert wish to use any of the above such permissions as are necessary are hereby granted by me as author. DC

22.26    On the DGM Guestbook…

Just wondering... :: Posted by apisch on August 16, 2011
...when Robert is in the middle of one of his practice sessions at home, does he occasionally rip some blazing cords from 21CSM?

No. But I do practice the fast breaks.

Enough for one day?...

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