BLOGDIAL : We are the best

From: "Byrnes, Benjamin" <Benjamin.Byrnes@Homestore.com>
To: "'irdial@irdial.com'"
Subject: Wilco
Date: Wed, 23 Jun 2004 15:08:17 -0700
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You have a catalog called the music philosophy. Yet you sue Wilco?

I will be badmouthing you that any chance possible.

Thank a cases
Ben

In a classic David and Goliath confrontation, Irdial-Discs, experimental independent music label from the UK, brought a High Court action against WEA International over their CD release "Yankee Hotel Foxtrot" by the group Wilco, which flagrantly infringes Irdial's copyright.

"Yankee Hotel Foxtrot" bears a track entitled "Poor Places", which contains one minute and thirty seconds of sound from "Phonetic Alphabet Nato" lifted directly from disc one of the quadruple CD "The Conet Project: Recordings of Shortwave Numbers Stations". The Conet Project track features a female voice repeating over and over the phrase, "Yankee Hotel Foxtrot", which Wilco took for the title of their critically acclaimed CD.

WEA International did not ask for permission to include this sound from our release in the CD "Yankee Hotel Foxtrot", which has sold close to one million infringing copies.

The Conet Project is a historic collection of espionage "Numbers Stations". These Numbers Stations are found on the shortwave radio bands, and are used by the CIA, MI5, MOSSAD and the rest of the world"s espionage agencies to communicate to their agents in the field.

The Conet Project is the first ever CD release to systematically collect recordings of all known Numbers Stations world-wide for the purpose of the historic preservation of this largely unknown area of espionage tradecraft. Before its release, there were no recordings of Numbers Stations in The Library of Congress or The British Library, both of which now have a comprehensive set of examples of this phenomenon thanks to The Conet Project.

Numbers stations have been on the air for at least 30 years, and they can still be heard today, all over the world, without any special equipment other than an ordinary short wave radio. They use a simple yet unbreakable system of encryption, known as a "One Time Pad", to scramble the messages sent out to spies at work in foreign countries.

The bizarre sound of these stations is deeply fascinating to shortwave enthusiasts, experimental sound artists and musicians. Each station has its own peculiarities and methods of operation, making finding and cataloguing them a rewarding hobby for the short wave enthusiasts who monitor them, and listening to them an inspiration to lovers of experimental music and "found art". This is why The Conet Project has been sampled and incorporated into dozens of compositions and works of art since its initial release.

By taking this sound from our release, tacking it onto the end of the track "Poor Places", and failing to obtain permission to release their CD with our sound on it, WEA International, an RIAA record label, infringed our copyright. It is only after the case was brought to the High Court of Justice in London that they have finally relented and have been pressured to, in their own words, "reluctantly agree" to pay Irdial-Discs a royalty in perpetuity on a worldwide basis.

From the perspective of someone interested in the nuances and absurdities of copyright law, this case brings up some interesting points.

What is "Phonetic "Alphabet Nato"?
This is a recording that we personally made, from a shortwave radio, of the station known s "Phonetic Alphabet NATO". No one knows where this station comes from. It has been attributed to MOSSAD the secret service of Israel, but no concrete evidence of this has ever been brought forward by anyone. This is a recording of a shortwave "Numbers Station".

There are many of these stations on the air. No one will admit to transmitting them. They have been on the air for at least 30 years.

The original recording was made onto a cassette. It was then edited down to give a clear example of the stations normal transmission format, i.e.: a "call up"(in this case, YHF), "message message", the message, and "End of message end of transmission" at the end of the transmission. The recording was also cleaned up with equalization to remove noise.

Monopoly clauses
The monopoly record labels use clauses in their contracts to immunize themselves against legal attacks if copyright infringement takes place. This means that if WEA International releases a CD with samples on it, the infringed party can seek damages from only the artist, and not WEA International. Normally, you are only allowed to receive a proportion of the royalties due to the artist. This means that if the artist is bound by a contract that pays him 1% of the profits from a release, then you can only receive a proportion of that amount, while the label keeps the other 99% in its entirety. This is an astonishing situation, where a third party that is not a signatory to a contract, is bound by the terms of that contract.

http://www.bayarea.com/mld/bayarea/entertainment/3029974.htm

This is the case where the RIAA obtained a payout from a company for sharing MP3 files internally on its network.

It seems odd that a company can be fined one million dollars for sharing files, whilst WEA International can *sell* 1,000,000 infringing copies of a CD, and face a much lower penalty.

WEA International is part of the RIAA; they should not be able to arbitrarily penalize a company and be immune themselves from large damages when they are the infringing party, because of indemnifying clauses in their contracts.

This does however, bring up some interesting possibilities.

If you run a record label, and want to release a copyright infringing recording without having to pay royalties to anyone at all, do this:

Allow your artist to create a recording with any samples that she likes. Make sure that the contract you have with the person who created the work is collecting a royalty from you of exactly .01%. Start selling the infringing copies as quickly as possible. When you are inevitably sued by the RIAA or the "Big Five" company whose work you have used, they will not be able to collect a penny from you, or your artist.

Of course, you will be served with an injunction stopping you from manufacturing and selling further copies of the work, but for most labels, this should not be an issue, since the number of manufactured copies are small. If you are in the position of having a hit, you can negotiate while the record is hot, and after sales start to trail off, stop manufacturing, let it sell out and then delete the release without having to pay a royalty to anyone. You can compensate your artist by paying them to do the photocopying in your office or by some other means unrelated to the release in question.

If it is a fact that you can only collect royalties from the artist in a case of copyright infringement and the label remains immune - which the best copyright lawyers in the UK and the USA agree is the case - then any label, not just an RIAA label, should be able to use this as a strategy to release recordings containing whatever they want, and still keep 99.99% of the profits.

But you don't own the copyright of Phonetic Alphabet NATO!
The recording we made of YHF was not made directly from the source of the people who originated the transmission, in other words, we did not go to the building of the originators, and plug our cassette machine into their tape machine to make this recording directly. This is a personally made recording of a shortwave transmission, with all of the nuances, noises and distortions short wave radio produces. These distortions, nuances and noises make our recording unique, and completely remove it from being a literal duplication of the original source. It is in art terms a piece of "Found Art", unique to itself, and impossible to replicate, since the above-mentioned qualities of shortwave interference are random effects.

In another context, imagine if we had made use of an anonymously authored traditional carol, which is copyright free. We make a creative use of this free work, and publish it in a special book of traditional Christmas carols, which have been typeset and designed by us. If someone then took a scan of one of the pages from our book, and then made a Christmas card out of it, or took this scan to use in their own book of Christmas carols, our copyright would have been infringed, irrespective of the fact that the original carol was copyright free. This example put to rest the argument that the recording of Phonetic Alphabet NATO is not protected by copyright, and that Irdial are indeed, the owners of it.

The same principle used in the Christmas card example works for this recording. The piece that Wilco took and used in their CD was from our edition, The Conet Project, containing a work that was recorded by us. Our choice of recording was specific, our editing and sound cleaning was specific, and as we say above, the recording that we made is unique, by virtue of how and where it was recorded.

The contextual value of the recoding is ours, and is not present in and is very different from a Numbers Station that one would hear live on the radio. This recording has an extra value because it came from The Conet Project, which is evidenced by the number of people who continue to sample from it, and the number of times it is "namechecked" as the source of the sound.

The recording of Phonetic Alphabet NATO is directly analogous to a hydrophone recording of whale song. When a marine biologist makes a recording of Sperm Whales, the copyright of that recording belongs to the person or institute that made it. No secondary use of that recording can be made without the permission of the person or entity that made the recording; the physical recording itself is copyrighted, meaning that you cannot make a copy from that physical tape, minidisk or CDR without the explicit permission of the person who made it.

There are three parts to the copyright of a recording. The copyright in the song (in the case of music), the copyright in the recording of that song (The Master) and the copyright in the disc that is used to sell the work to a member of the public.

During the process of settling this case, it was made clear to us that in a CD compilation of out of copyright works, such as 78rpm records, the only protection afforded to the companies that release these discs is the order in which the tracks appear in the compilation, and not the sound on the discs, since the source of the sound is in the public domain. This means that any compilation of out of copyright songs you buy can be copied by you, re-packaged and sold again, as long as you change the order of the tracks in your edition! It seems that there is no protection for those companies who specialize in these compilations, whereas the commonly held belief is that there is a blanked prohibition on copying from discs that are still within the time limit set for copyrighted sound carriers. If the company made adjustments to the public domain recording, like removing scratch sounds etc, then they have protection under copyright legislation, because they have in essence, created a derivative work.

http://www.amazon.co.uk/

Irdial-Discs is distributed in the USA by Forced Exposure

UPDATE!
The piece in Wired has been silently updated.

But here's where a strange story turns even odder:

Stranger and stranger indeed. I will answer the points that appear in this update one by one.

Simon Mason is a major contributor and supporter of The Conet Project He donated many recordings to the project, wrote a small piece for the 80 page booklet, and is clearly attributed and thanked in the acknowledgements section of the booklet.

When The Conet Project was first conceived, it started out as a single CD of my own recordings. I then sought out and received donations of recordings from others, as I became aware of the staggering amount of history behind the Numbers phenomenon and the breathtaking variety of stations that have now passed into history.

As each tape was entered into the project, it was carefully catalogued. The idea was to have an example of every extant recording of all known numbers stations, and for each example to be the best one out of those available.

Each tape was combed through, and catalogued in this way. Submitted tapes were fed though the EQ of our 24 track mixing desk onto reel to reel masters, and entered into the project in the order that they were received. Where a later submission had an example that was better than one already entered, that submission replaced the earlier example. This is the list of who submitted what, transcribed directly from The Conet Project worksheets:

Tracks 1 thru 8, track 61, track 38 are recorded by Akin Fernandez
Tracks 19 thru 35, 36 to 60, are recorded by Simon Mason
Tracks 9 thru 14 are recorded by Phil J. Harrison
Tracks 15 thru 18 are recorded by Tom Sevart
Tracks 63 and 64 are recorded by Jacques Bras
Other Tracks are recorded by Mike Gauffman and Chris Midgley

As you can see from this list, tracks 1 thru 8 were submitted by me, and Simon Mason?s contributions begin at track 19. The "Phonetic Alphabet NATO" in question is track 4 on The Conet Project, and was submitted by me. Track 32 is another "Phonetic Alphabet NATO" track, this example being one submitted by Simon Mason. (Track 32 is track 9 on Disc 2) There are two other "Phonetic Alphabet NATO" examples on Disc 2; number 25 and 26. None of these tracks are the ones that WEA International has on their infringing CD by Wilco; the one that was used is my recording, taken from Disc 1, track 4.

In preparing for the case against WEA, I was asked detailed questions about Numbers Stations, how they are made, the precise nature of the voices in question, the provenance of the submitted recordings and many pieces of other information. I gave detailed responses to all these questions to our solicitors. We were well prepared to go to court to settle this matter, and all of the pieces of evidence were closely examined, both from the point of view of the law and the precise nature of The Conet Project and its recordings. It was only after this was done that it was determined that the case was solid enough to pursue. You do not go up against a multi million dollar company without thorough fact checking. This is precisely what I and our legal team did.

It's very easy to make a claim in writing. It is entirely another thing to put your money where your mouth is, and be prepared to take heavy losses in a risky court action. Irdial puts its money where its mouth is, from releasing The Conet Project in the first place, at a time when some paranoid Short Wave monitors were too frightened to reveal what they were monitoring for fear of prosecution and when shortwave magazines were too frightened of legal action to print detailed information about Numbers Stations. We took the personal and financial risk to make this extraordinary project real, and expose to the world the amazing mystery of Numbers Stations. It is thanks to The Conet Project that the first ever major news articles about Numbers Stations were printed, and it is also thanks to us that the first ever government pronouncement about Numbers Stations was made. We don't simply talk about freeing music; we have done it with our valuable catalogue of works, under a generous license. Irdial is not about empty words; we take action, and when we do so, we are deadly serious about it, and are willing to go where others are, for whatever reason, unable or unwilling to.

We have the absolute, irrefutable proof that the recording in question belongs to me. We were ready to go to court and face forensic examination of The Conet Project archive to establish that it was indeed one of my tapes that was the source of this recording. Taking all of this into account, even the most skeptical of persons would be hard pressed to believe that we would be bringing an action before the High Court of Justice without the most solid of cases to hand.

But some intellectual property lawyers are more than steamed at Fernandez for laying claim to Mason's recordings.

"If Irdial simply published someone else's recording verbatim, then under U.S. Copyright law, they don't own anything," Schultz said in an e-mail.

Copyright lawyers are variable in quality. I have spoken to specialist copyright lawyers who have said to me ?I don?t know what Mechanical Copyright is?, so caveat emptor when you shop around for advice in this field.

This case was brought to an English court. U.S. Copyright law is not relevant in a UK court. This is a pretty basic fact. Put simply, U.S. copyright law is irrelevant to this case. Our lawyers are the best in the UK. If you want to find out about copyright law that is relevant to a case, you need to consult a lawyer from the jurisdiction where the case was heard, not one from another jurisdiction that may not have complete knowledge of the relevant copyright law.

I am the person who recorded the tape of "Phonetic Alphabet NATO" that was entered into The Conet Project and which is the sound on WEA's infringing CD release Yankee Hotel Foxtrot by Wilco. It is absolutely not "unclear whether Fernandez even recorded the "Yankee" shortwave broadcast himself". I was willing to go to court to prove this, with the physical evidence in hand, and there should be no doubt in anyone's mind about what this actually means. These are the facts, not out of jurisdiction trans-Atlantic speculation, or poorly recollected reminiscences.

Most importantly you must bear in mind that we were able to force a settlement. WEA and their lawyers on two continents (and the legal representatives of the other three signatories of the settlement) would never have settled if they thought for an instant that we had no case.

A Mechanical copyright primer

For those unaware of the relevant parts of copyright law, take a quick lesson from the MCPS

So that you understand how this part of copyright law works.

Now take a look at this:

Silence lawsuit and payment: BBC

Musician Mike Batt had paid a six-figure sum to settle a bizarre dispute over who owns copyright to a silent musical work.

Batt, who had a number of hits in the 70s with UK children's characters The Wombles, was accused of plagiarism by the publishers of the late US composer John Cage, after placing a silent track on his latest album, Classical Graffiti which was credited to himself and Cage.

http://news.bbc.co.uk/1/hi/entertainment/music/2276621.stm

There cannot be anyone that thinks that if someone can be made to pay a royalty on the use of silence that somehow we were going to allow a multi million dollar record company take 1m:30s of actual recordings from one of our discs and get away with it Scott free!

Anyone who cries about copyright law being unfair, about it being used as a blunt instrument and hand break on new technologies and business models, but who also says that we were wrong to peruse this case is at the least disingenuous at worst naïve.

Copyright law is under the complete control of ?the monopoly? the huge record labels that are able to have tailor made legislation drawn up for them and entered into the statue books almost without restriction. Every day there is news of another law tabled that will erase the rights of people to do what they want with the music carriers that they own, and yet, the same people who protest this, fail to understand what it means when someone brings a real world action against this monopoly.

Everyone understood that the limitation of the duration of copyrights was implemented so that the owners of intellectual property can benefit as well as the population. What happened in reality is that extensions have been added to the duration of copyright again and again; the last time that works that were due to fall into the public domain they were snatched away by the enactment of legislation sponsored by an entertainer turned politician. It is clear that any promise of works falling into the public domain cannot be relied upon, since the goalposts can be moved back at any time by the monopoly and its government agents. This means that whole generations will not have access to works that they were entitled to.

If copyright law is going to be used in this way, and the many other ways it is used, against the best interests of the public and independent artists, then it is wholly fair and reasonable that that same law be used against the monopoly companies when they flagrantly violate the copyright of another company, no matter what the size of that company is. There will be no ?golden age of copyright? while the monopoly continues to control copyright law and the way it is interpreted and enforced.

No amount of lobbying, CD stickering, debating or writing will stop the monopoly. Only concrete actions that empower the public will have any real effect; this means writing software tools to protect the public, releasing the works you own for free, and as I have said before, the other 80% of copyrights world wide being gathered together into a second force to overwhelm the influence and power of the monopoly will actually do anything.