11.04
Bredonborough.
Eric the Hero has e-mailed the DGM Team to liase views on the development of the site, so Eric may address & construct the technical aspects of DGM future-life in the online world.
One recent tropic of kitchen-discussion: a new feature - Fripp On Wednesday. This addresses Fripp-specific downloads; eg G3 Soundscapes, historic Frippertronics & about-to-be-becoming visits by various pals to DGM SoundWorld I to play over Soundscapes. These various blasts of wonderment will be released on Wednesdays, whether once a month / week / year remains to be discovered.
Meetings with Builder Cheese at home, to discuss radiator placement in the attic; and Matthew Gardener at World HQ to accommodate garden developments there.
15.33 Organisation in the Cellar I…
A box unopened since packed in May 1999, about-to-be-leaving Reddish House…
New old-bookcase…
Thank you for inviting us - I hope some of the illumination is interesting. I actually found some of the conversations around piracy very informative, so thank you for that.
Out of interest , does the BPI have a "code of conduct" regarding piracy to which all members should subscribe? If not, this might be an area worth exploring. Without wishing to return to the bun-fight (or teach a hardened professional how to suck eggs), it could be something like "using best endeavours not to practice or support piracy (or dishonour copyright) with maybe an undertaking to repay to the copyright owner double the total income received from any pirated goods. So that a pressing plant that pressed pirate copies would pay to the copyright owner double what they received, or likewise the famous HMV, or any other transgressor.
Your anti-piracy unit has made heroic progress both on the scourge of the rogue sites… and over individual uploaders/downloaders - but it seems to me there is an inherent weakness if the industry itself is not supporting you by making "best endeavours to honour copyright". Amazingly, having described some of woes with EMI at the meeting, last week, we went on i-Tunes to discover that some of our catalogue had magically reappeared, this time licensed by Sanctuary / Universal (who have no such rights). When the lawyer at Universal was first queried on the phone, in an unguarded but wonderfully truthful reply, he said "do you really expect me to check every contract before we deliver the catalogue." In other words, they had no intention of making "best endeavours" (or of making significant redress). By not checking in advance, they are knowingly indulging in piracy - and damaging our catalogue by allowing a full price album to be sold for $4.95. This type of ongoing offence could be very significant.
If I were defending someone accused by the labels of illegal downloads (fortunately I am not a lawyer, and would not such defend such practices), I would argue that the labels have no right to punish individual downloaders, as while individual downloaders are simply music lovers, the labels themselves knowingly indulge in large scale illegal downloading for profit, and thus have no moral case for punishing others. Worryingly (I am thinking this through as I write), if the labels lost that case, they would be pretty much out of business, as free downloading would be acceptable.
This is not a case of "label bashing"- we are ourselves a label of sorts, and proud "affiliates" of the BPI through Declan. I am just astonished how lazy the industry is about putting it’s house in order over the thing that ought to matter most to them - namely copyright.
Please, innocent DGM visitors, note the Sanctuary UMG’s lawyer & his question:
do you really expect me to check every contract before we deliver the catalogue? Perhaps, we might respond: as regards the DGM contract, yes, we really expect you to check our contract before making our catalogue available for download when you have no rights to do so. Dear visitor, rhis is the actuality of daily life within the music industry: what! check on whether we have rights or not before we do anything with your music? Please note the assumption, presumption & fundamental arrogance. DGM visitors may also recall the comment of EMI’s lawyer when we complained that DGM / KC titles were being put up for downloading by them, without any entitlement at all – shit happens! get over it.
Neither of these two indicative & revealing comments, by lawyers at two global companies with whom we are having / have had extended & lengthy blocking-correspondence, were expressed in writing. What has been put in writing is (to my eyes) evasive, opaque, irresponsible & astonishingly arrogant, given that both EMI & Sanctuary UMG are the malfeasors.
This is a summary of our present position with Sanctuary UMG…
DIGITAL SALES
Sanctuary UMG informed us told on Nov 30th 2007 that the material would be removed from all services within a few days.
Thirteen months later, Sanctuary UMG is still offering this material for sale via i-Tunes in a number of territories, with The Power to Believe album being offered for sale at a budget price, below the price of the Happy TBH mini-album, at i-Tunes stores.
S/UMG are offering to offset this by paying through the received income, but that does not alter the fact that UMG has repeatedly offered the material for sale without the rights to do so (as they have acknowledged).
UMG has also allocated money gained from download sales against unrecouped sales of the physical catalogue (which is illegitimate).
PHYSICAL SALES (I)
S/UMG told us that Sanctuary’s consignment distributors were offered the opportunity to "return or sell-off" KC material; and S/UMG had little, if any, control over this process; and acknowledge that most consignment stock was sold-off rather than returned for destruction.All cheap sell-offs are prohibited in the original Agreement. The Agreement stipulates that stock sold during any sell-off period must be sold at normal/full price, with the balance of stock destroyed. Any stock sold in this manner was sold in breach of the Agreement. Presumably, no royalties or mechanical copyrights were paid on these sell-offs.
PHYSICAL SALES (II)
S/UMG acknowledged, after it had been pointed out to them, that product was sold cheaply to Windsong by UMG UK. S/UMG now deny that the album was sold cheaply to Wndsong. We have it in writing from Windsong’s Head of Sales that UMG sold a quantity of the album and the mini-album to Windsong at "Campaign prices" during 2008 with a note of the quantity sold. The implication is that UMG UK offered these prices on a broader level than just to Windsong.
All cheap sell-offs are prohibited in the original Agreement. The Agreement states that stock sold during any sell-off period must be sold at normal/full price, with the balance of stock destroyed. Any stock sold in this manner was sold in breach of the Agreement.REVERSION
Under the Termination terms of the DGM – Sanctuary deal, DGM has the right to terminate on the occurrence of events including the Agreement being assigned to one of the major distributors or companies owned by a major distributor.
The sale of Sanctuary to Centenary/UMG transferred the rights assigned from Sanctuary Group PLC (as was) to Centenary/UMG. Documents lodged at Companies House make UMG’s ownership of Sanctuary apparent. We argue that this renders the original notice of Termination as valid.
... any other reorganization...
We appreciate that reorganization can have a specific meaning in Company Law, though if such a specific meaning had been intended by all parties to the contract, then the word would have been capitalised in the Agreement to indicate this. In any event, documents lodged at Companies House indicate that a reorganization of the original Sanctuary did occur; therefore the original notice of Termination was valid.
… In the event of non-receipt of statements of account from the Licensee and failure to cure such default within 30 days after receipt of Company’s written notice or cabled demand…
We wrote to S/UMG in early December 2007 requesting accounting for all outstanding items. We wrote a reminder some ten days later. S/UMG never responded. The Second Tier Lawyer told us their laptop had developed a technical fault. This does not absolve S/UMG of its contractual responsibilities.
Even if we accept the S/UMG position about the Termination on sale to UMG (which we don’t), the failure to respond to the requests for accounting resulted in Termination at the beginning of January 2008 at the latest with no sell-off rights.
We have confirmation from Merck Mercuriadis (the man responsible for the Sanctuary/King Crimson Agreement at Sanctuary) that DGM’s understanding of the reversion clauses and the intent of those clauses as understood by Sanctuary at the time of the Agreement are identical.
SUMMARY
All of this, the ongoing digital sales, the cheap sell-offs, the damage to the catalogue, the vast amount of time that has had to be devoted to dealing with the S/UMG STL, could have been avoided had he chosen to engage with us properly & promptly when he was first appointed to the task in September 2007. It could also have been resolved had he chosen to respond to our messages in December 2007.
In allowing the ongoing cheap sales of the catalogue - physical and digital - in breach of the original Agreement, S/UMG has deprived DGM/KC parties of their rightful income & damaged our management / supervision of the catalogue.
***
Perhaps the innocent visitor has spent enough time reading through the depressing paragraphs above. Well, they can speed away from this Diary, the DGM site & any contact with daily life in the industry trenches. I cannot. So, the next time a poster has a helpful suggestion to make about how I might use my time more profitably (perhaps by enabling & helping music to enter our sorry world, even writing a new song, even flying off to play with Crimson Band Buddies in various locations around the world) providing that poster is willing, able & has sufficient authority to replace me in our current & ongoing industry battles, their suggestions will receive my attention.
One of the aims of this Diary is to better acquaint fans & enthusiasts with the realities of life for the Working Player; that f&e participation in commentary & discussion might be better informed. I hope, at the end of this day’s Diary, that this aim is a step closer to being realised.
This from a recent RF letter to the SLT at S/UMG…
you write...
“Universal digital have requested i-Tunes to take down the product in all territories. It appears that they were put up on i-Tunes by Sanctuary (not Universal) which means that the take down is a little slower than would otherwise be the case, as we have to go to each i-Tunes service individually”.
but i thought your position was that Sanctuary UMG was the same company as Sanctuary, ie Sanctuary was not re-organised? that with new owners & new people running the company, nothing had changed? if there was no change, as you have argued, then why the above?
and, since UMG acquired Sanctuary, this being something beyond what i understand as “a term of art”, you also acquired their liabilities.
i am confused. please help me…
Sanctuary UMG’s Second Tier Lawyer has not been replying to my recent e-letters, perhaps because that incline towards frank & direct terminology. But a recent letter from him to DGM included this…
I have made some offers to try and resolve your complaints, but these proposals will require some concessions from DGM and an end to this correspondence.
Concessions. Concessions. Concessions? Concessions is a word of historic resonance in my affairs. From my today-reply to Mr. STL of S/UMG…
the last time i was approached to make concessions in this fashion was by mr. alder of EG in 1991/2. his position at the time was, that for him to pay me due income & royalties to which i was entitled, he required concessions; ie that to which he was not entitled, as a requirement for him to meet his obligations.
you may remember the story: i was represented by john kennedy and, at the end of 6.5 years of dispute & litigation, the copyrights moved to me. alternatively expressed, mr. alder’s demand for concessions was profoundly offensive, and lead to me taking a course of action which avoided his preferred concessionary approach.
you may have noted that this letter is copied also to richard bray, a partner at kennedy’s at the time of Endless Grief who, on john’s departure from his practice, completed the EG / Virgin / BMG settlement for me; and who has represented my interests since. in fact, richard is the man who wrote the re-organisation clause in the Sanctuary / DGM contract. we have contacted richard & asked his view.
in brief, there seem to be 3 outstanding areas of disagreement: re-organisation, downloading, dumping.
1. re-organisation. the three negotiating parties - merck, david singleton & myself - are all on the record with you as intending & understanding that the clause was intended for, and directly applicable to, exactly the situation that arose when sanctuary was acquired by UMG. richard bray is the man who actually wrote the clause. if you are suggesting that the clause is no more than a term of art, then you are implying that richard was negligent in his drafting. i look forward to richard’s view on this.
in other words, no concessions here.
2. downloading.
i believe we have agreed the principle on this, but note that there is no sense from you of being the party that has violated the interests of the copyright owner/s. “it’s alright if we give you the money we’ve collected!” is not, i believe, the approach you would take if DGM had downloaded your own copyright material. is it theft, when money illegitimately acquired is returned to the rightful party? perhaps, perhaps not. but does it redeem the act?there is an arrogance embodied in your correspondence that i find offensive. i have no difficulties with mistakes; i have difficulties with those who make mistakes & subsequently brush aside their accountability & responsibility to address the repercussions of those mistakes.
this is not the place to discuss with you DGM / Panegyric policy on downloading; other than to note it is not for you to prejudge what we may / may not make available for downloading via i-Tunes. this is not the place, neither is it your position, to imply that were we to have taken your course of action, it would have been the right one for us.
I am not sure how this is to your detriment...
this implies a detailed familiarity by you of our overall company policy, and your capacity to make judgement calls on our behalf. this is arrogant.
... but if we pay you the income we receive, this point becomes irrelevant anyway.
how? how does this negate your actions?
this is the place, however, to state: you owe us money and we are waiting for the accounting.
in other words, no concessions here.
3. dumping.
Declan of panegyric (DGM’s distributor) appears to be better informed on the actions of your company in its various european territories than yourself. this gives me some concern, particularly where the tone you have adopted in our correspondence has been to reject / downplay your accountability & responsibility – “how could i know? how could i control stock disposal?” or, to quote a Second Tier Lawyer at EMI fairly recently in discussing comparable malfeasances at your own former company, “shit happens”. with that particular STL, his obiter dicta returned to haunt him, unfavourably.
all the parties to this current e-letter have sufficient experience in the industry, i believe, to approach the question - do we believe that dumping of stock might have taken place? - with the answer - well, shit happens!
currently, there is outstanding accounting for these "sales". that is, you owe us money & we are waiting for it.
in other words, no concessions here.finally, for this e-letter, i would like to place on the record that you have, single handedly, manage to terminate 5 years of goodwill between sanctuary & DGM. you have been slow to address our arising & legitimate concerns. you seem to lack the detailed information, that declan has, of the behaviour of different parts of your company. your tone has been arrogant & dismissive, this particularly ill-placed given that you are the malfeasor. we have not violated your rights. we have not made available your material for sale. we have not told you that the three parties to a contract, and the solicitor writing that contract, did not understand the nature of their agreement & in any case their solicitor lacked the capacity to express that in print. in sum, i feel you are part of the problem & not likely to be part of the solution.
i’m not fully sure of mr. r’s (of S/UMG) involvement in this dispute, nor whether those in positions of seniority to you have an interest in settling this, but a settlement is possible & available. but for this, either your attitude changes, or the person dealing with us changes.
so, i guess no concessions there either.purely out of interest, though, what concessions did you have in mind?
Well. There we are. Just another day in the music industry.
"Expect nothing."
