blackstoneharness.com

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.

Friday, September 26, 2008

On October 14, 2008, Canadians will be heading to the polls for the federal election. New Democratic Party candidate Pastor Ryan Dolby is standing for election in the riding of Elgin—Middlesex—London.

Born in Chatham, he moved to St. Thomas in 1994, and recently to the Village of Shedden. An employee of Lear Corporation, Dolby is a CAW Local 2168 member, who serves as Union Benefits Representative, and Local Trustee and Chair of the Union in Politics Committee. A CAW Council Delegate representative, he was appointed to the CAW National Employment Insurance Committee in 2006. He is involved in community organizations ranging from the St. Thomas Action Centre, United Way, the St. Thomas Women’s Shelter and the St. Thomas Fanshawe College Campus Advisory Committee. Having studied at the University of Windsor, he is currently completing the Labour Studies Certificate Program at McMaster University, aiming towards a Bachelor’s Degree in Labour Studies

Wikinews contacted Ryan, to talk about the issues facing Canadians, and what they and their party would do to address them. Wikinews is in the process of contacting every candidate, in every riding across the country, no matter their political stripe. All interviews are conducted over e-mail, and interviews are published unedited, allowing candidates to impart their full message to our readers, uninterrupted.

In 1996, the riding was created through the amalgamation of the Elgin—Norfolk, Lambton—Middlesex, and London—Middlesex ridings. While it was a Liberal riding for many years, through Jean Chretien’s Parliamentary Secretary Gar Knutson, in 2004, the riding became Conservative, with Joe Preston taking its reigns. Besides Dolby and Preston, the riding’s candidates include Liberal Suzanne van Bommel, Green Will Arlow, CAP Noel Burgon, CHP Carl Hiemstra, and independent Michael van Holst.

For more information, visit the campaign’s official website, listed below.

Thursday, July 3, 2014

Ian Narev, the CEO of the Commonwealth Bank of Australia, this morning “unreservedly” apologised to clients who lost money in a scandal involving the bank’s financial planning services arm.

Last week, a Senate enquiry found financial advisers from the Commonwealth Bank had made high-risk investments of clients’ money without the clients’ permission, resulting in hundreds of millions of dollars lost. The Senate enquiry called for a Royal Commission into the bank, and the Australian Securities and Investments Commission (ASIC).

Mr Narev stated the bank’s performance in providing financial advice was “unacceptable”, and the bank was launching a scheme to compensate clients who lost money due to the planners’ actions.

In a statement Mr Narev said, “Poor advice provided by some of our advisers between 2003 and 2012 caused financial loss and distress and I am truly sorry for that. […] There have been changes in management, structure and culture. We have also invested in new systems, implemented new processes, enhanced adviser supervision and improved training.”

An investigation by Fairfax Media instigated the Senate inquiry into the Commonwealth Bank’s financial planning division and ASIC.

Whistleblower Jeff Morris, who reported the misconduct of the bank to ASIC six years ago, said in an article for The Sydney Morning Herald that neither the bank nor ASIC should be in control of the compensation program.

Friday, January 20, 2006

A message in a bottle thrown into the sea by a four-year-old girl in England has been found 9,000 miles away in Western Australia.

Alesha Johnson threw the bottle into the water at Morecambe Bay, Lancashire last July, enclosing her Heysham address, and a picture of herself.

The note read: “If you get this message, please write back.”

This week, she received a letter from a 10-year-old from Perth, who said he had found the bottle in a local Boatyard.

Doreen Johnson, the manager of the nursery Alesha attends in Heysham, said: “We were all very excited when the letter from Australia arrived addressed to Alesha.

“We never dreamed the bottle would go that far, it’s amazing.”

The Australian boy, who said only that his name was Bob, wrote in his letter that he had asked his father to look up Heysham on the Internet.

The child did not enclose an address as he said he was moving house, but would write back when he had his new address: “We are in the middle of moving house and it’s Christmas here but when we are settled I’ll write to you again”.

Nobody will know exactly how it got there but the most likely route would have been into the Atlantic, sweeping down the west coast of Africa and into the Southern Hemisphere. After rounding the Cape of Good Hope the bottle must have then crossed the Indian Ocean. Oceanographers suspect the bottle could not have travelled the whole way on its own in only six months, and it must have been caught up by a ship and transported part of the way.

“It was summertime when we threw it in the sea. All the children in class were given bottles to take home in July but Alesha’s is the only one that got a reply”, she said.

“I don’t know what the other parents did with theirs. We went straight down to Morecambe Bay. Alesha was only 3 at the time. She could barely throw the cola bottle beyond her feet. I just assumed it would be washed straight back and forgot all about it.”

“Then recently when I went to pick her up from nursery I was told that she had had a reply from this little boy and it had made it all the way to Australia. I couldn’t believe it. I was walking on air for about four days and was really proud. It’s made me very happy.” Ms. Matthews said that Bob had made a copy of Alesha’s original note and returned it to the Time For Nursery in Heysham. He also wrote to Alesha and the family is now looking forward to learning more about him.

“I have never heard of a message in a bottle travelling so far so quickly.”

Last December a message in a bottle sent from New York was washed up at Newquay, Cornwall. It had been sent 18 months earlier.

Tuesday, August 5, 2008

Starting in September, British schools will inform parents of their child’s weight in an attempt to deal with the growing issue of obesity, according to an announcement by the Department of Health (DoH).

Nearly 23% of children aged 4-5 are overweight or obese, with that figure growing to nearly 32% for children aged 10-11. Standard procedures in schools involve weighing and measuring children in schools to determine their body mass index (BMI). The information is passed on to the National Health Service (NHS) to determine the extent of obesity in the area.

Parents will soon be sent a letter of their child’s weight, including advice on what to do if the child is overweight. However, government ministers have ruled that “offensive” language, such as “obese” or “fat” will not be allowed to be used in the letters, with words such as “overweight” being used instead.

The letters will provide useful information to parents, such as the problems caused by obesity like diabetes, and how to overcome these problems. Research has shown that parents often do not realise their child is overweight, and the letters will be a “wake-up call” to them.

“We have to get the balance right between being a nanny state and a neglectful state,” said Will Cavendish, the director of health and wellbeing at the DoH.

Sunday, May 18, 2014

The governor of the Bank of England, Mark Carney, has warned that the state of the housing market in the United Kingdom is the current biggest domestic threat to the country’s economy, due to lack of house building, and regulatory issues.

In an interview to be aired on Sky News today, he said the housing market is the “biggest risk” to the economy and has “deep, deep structural problems”. Of house building he said: “There are not sufficient houses built in the UK. To go back to Canada, there are half as many people in Canada as in the UK, twice as many houses are built every year in Canada as in the UK and we can’t influence that.”

“We’re not going to build a single house at the Bank of England. We can’t influence that. What we can influence […] is whether the banks are strong enough. Do they have enough capital against risk in the housing market?”

Carney also said the Bank of England would look into the procedures used to issue loans and mortgages to see if they were being granted appropriately: “We’d be concerned if there was a rapid increase in high loan-to-value mortgages across the banks. We’ve seen that creeping up and it’s something we’re watching closely.”

Kris Hopkins responded to Carney on behalf of the government, saying the government “inherited a broken housing market, but our efforts to fix it are working”. “We’ve scrapped the failed top-down planning system, built over 170,000 affordable homes and released more surplus brownfield sites for new housing. We’ve also helped homebuyers get on the housing ladder, because if people can buy homes builders will build them. Housebuilding is now at its highest level since 2007 and climbing. Last year councils gave permission for almost 200,000 new homes under the locally-led planning system and more than 1,000 communities have swiftly taken up neighbourhood planning. It’s clear evidence the government’s long-term economic plan is working.”

Earlier this month, the Organisation for Economic Co-operation and Development called on the UK government to “tighten” access to the ‘Help to Buy’ scheme introduced by George Osborne and the coalition government in 2013. ‘Help to Buy’ has also recently been criticised by three former Chancellors of the Exchequer — the Conservatives Norman Lamont and Nigel Lawson, and former Labour Chancellor Alistair Darling. Darling said: “Unless supply can be increased substantially, we will exacerbate that situation with schemes like Help to Buy.”

Sunday, June 17, 2007

The National Transportation Safety Board (NTSB), the agency responsible for investigating transportation accidents in the United States, released updates on three major investigations on June 14.

The NTSB, well known publicly for its involvement in the investigation of aviation incidents which involve harm or loss of human life, is also an agency that oversees the transportation of refined petroleum and gas products, chemicals and minerals.

The agency determined the cause of a natural gas pipeline explosion that killed six. It also detailed the cause of an accidental release of 204,000 gallons of anhydrous ammonia from a pipeline in an environmentally sensitive area, and released preliminary information involving two commercial aircraft coming within 30-50 feet of each other on a runway.

In the gas explosion disaster, the towing vessel Miss Megan, which was of specifications that did not require inspection by the United States Coast Guard, was being operated in the West Cote Blanche Bay oil field in Louisiana by Central Boat Rentals on behalf of Athena Construction on October 12, 2006. The Miss Megan was pushing barge IBR 234, which was tied along the starboard side of barge Athena 106, en route to a pile-driving location. Athena Construction did not require its crews to pin mooring spuds (vertical steel shafts extending through wells in the bottom of the boat and used for mooring) securely in place on its barges and consequently this had not been done. During the journey, the aft spud on the Athena 106 released from its fully raised position. The spud dropped into the water and struck a submerged, high-pressure natural gas pipeline. The resulting gas released ignited and created a fireball that engulfed the towing vessel and both barges. The master of the towing vessel and four barge workers were killed. The Miss Megan deckhand and one barge worker survived. One barge worker is officially listed as missing.

The NTSB blames Athena Construction for the disaster, citing in the final report that Athena Construction’s manual contained no procedures mandating the use of the safety devices on the spud winch except during electrical work. It was found that if the Athena 106 crew had used the steel pins to secure the retracted spuds during their transit, a pin would have prevented the aft spud from accidentally deploying. Furthermore, the spud would have remained locked in its lifted position regardless of whether the winch brake mechanism, the spud’s supporting cable, or a piece of connecting hardware had failed.

The NTSB also found that contributing to the accident was the failure of Central Boat Rentals to require, and the Miss Megan master to ensure, that the barge spuds were securely pinned before getting under way. The Board noted that investigators found no evidence that the Miss Megan master or deckhand checked whether the spuds had been properly secured before the tow began. While Central Boat Rentals had a health and safety manual and trained its crews, the written procedures did not specifically warn masters about the need to secure spuds or other barge equipment before navigating. The NTSB stated that the company’s crew should have been trained to identify potential safety hazards on vessels under their control.

NTSB Chairman Mark Rosenker said of the investigation’s results, “Having more rigorous requirements in place could have prevented this accident from occurring. Not only do these regulations need to be put in place but it is imperative that they are enforced and adhered to.”

The NTSB has made a number of safety recommendations as a result of this accident and the subsequent investigation. Recommendations were made to Athena Construction and Central Boat Rentals to develop procedures and train the employees of its barges to use the securing pins to hold spuds safely in place before transiting from one site to another.

The most major of the other recommendations are:

To the Occupational Safety and Health Administration:

• Direct the Maritime Advisory Committee for Occupational Safety and Health to issue the following documents document to the maritime industry: (1) a fact sheet regarding the accident, and (2) a guidance document regarding the need to secure the gear on barges, including spud pins, before the barges are moved, and detailing any changes to your memorandum of understanding with the Coast Guard.

To the U. S. Coast Guard

• Finalize and implement the new towing vessel inspection regulations and require the establishment of safety management systems appropriate for the characteristics, methods of operation, and nature of service of towing vessels.
• Review and update your memorandum of understanding with the Occupational Safety and Health Administration to specifically address your respective oversight roles on vessels that are not subject to Coast Guard inspection.

The NTSB also released the result of its investigation into an environmental disaster in Kansas on October 27, 2004 in which 204,000 gallons (4,858 barrels) of anhydrous ammonia was spilled from a ruptured pipeline in Kingman into an environmentally sensitive area. Chemicals from the pipeline entered a nearby stream and killed more than 25,000 fish, including some fish from threatened species.

The incident reached the scale that it did due to operator error after the initial rupture. The 8 5/8-inch diameter steel pipeline, which was operated by Enterprise Products Operating L.P., burst at 11:15 a.m. in an agricultural area about 6 miles east of Kingman, Kansas. A drop in pipeline pressure, indicating abnormal conditions or a possible compromise in pipeline integrity, set off alarms displayed on the computerized pipeline monitoring system. Shortly after the first alarm the pipeline controller, in an attempt to remedy the low pressure, increased the flow of anhydrous ammonia into the affected section of pipeline. A total of 33 minutes elapsed between the time when the first alarm indicated a problem with the pipeline and the initiation of a shutdown.

In its initial report to the {{w|National Response Center|National Response Center|| (NRC), the pipeline operator’s accident reporting contractor reported a release of at least 20 gallons of ammonia, telling the NRC that an updated estimate of material released would be reported at a later time. No such report was ever made. Because of the inaccurate report, the arrival of representatives from the Environmental Protection Agency was delayed by a full day, affecting the oversight of the environmental damage mitigation efforts.

The cause of the rupture itself was determined to be a pipe gouge created by heavy equipment damage to the pipeline during construction in 1973 or subsequent excavation activity at an unknown time that initiated metal fatigue cracking and led to the eventual rupture of the pipeline.

“We are very fortunate that such highly toxic chemicals of the size and scope involved in this accident were not released in a populated area,” commented Rosenker. “Had this same quantity of ammonia been released near a town or city, the results could have been catastrophic.”

As a result of this accident, the NTSB made the following safety recommendations:

To the Pipeline and Hazardous Materials Safety Administration:

• Require that a pipeline operator must have a procedure to calculate and provide a reasonable initial estimate of released product in the telephonic report to the National Response Center.
• Require that a pipeline operator must provide an additional telephonic report to the National Response Center if significant new information becomes available during the emergency response.
• Require an operator to revise its pipeline risk assessment plan whenever it has failed to consider one of more risk factors that can affect pipeline integrity.

To Enterprise Products Operating L.P.:

• Provide initial and recurrent training for all controllers that includes simulator or noncomputerized simulations of abnormal operating conditions that indicate pipeline leaks.

“The severity of this release of dangerous chemicals into the community could have been prevented,” said Rosenker. “The safety recommendations that we have made, if acted upon, will reduce the likelihood of this type of accident happening again.”

As well as concluding their investigation of the above accidents, the NTSB also released preliminary information regarding a serious runway incursion at San Francisco International Airport between two commercial aircraft on May 26, 2007.

At about 1:30 p.m. the tower air traffic controller cleared SkyWest Airlines flight 5741, an Embraer 120 arriving from Modesto, California, to land on runway 28R. Forgetting about the arrival airplane, the same controller then cleared Republic Airlines flight 4912, an Embraer 170 departing for Los Angeles, to take off from runway 1L, which intersects runway 28R.

After the SkyWest airliner touched down, the Airport Movement Area Safety System (AMASS) alerted and the air traffic controller transmitted “Hold, Hold, Hold” to the SkyWest flight crew in an attempt to stop the aircraft short of runway 1L. The SkyWest crew applied maximum braking that resulted in the airplane stopping in the middle of runway 1L. As this was occurring, the captain of Republic Airlines flight 4912 took control of the aircraft from the first officer, realized the aircraft was traveling too fast to stop, and initiated an immediate takeoff. According to the crew of SkyWest 5741, the Republic Airlines aircraft overflew theirs by 30 to 50 feet. The Federal Aviation Administration has categorized the incident as an operational error.

The NTSB sent an investigator to San Francisco, who collected radar data, recorded air traffic control communications, and flight crew statements, and interviewed air traffic control personnel prior to the NTSB making the preliminary release.