Can the Ministry of Sound sue Spotify – and should they?

There's a copyright in playlists, argues the dance music label, and Alex Hern agrees.

The Ministry of Sound is suing Spotify for letting users make and share playlists which mirror the record label's compilation CDs, the Guardian's Stuart Dredge reports:

Ministry of Sound launched proceedings in the UK High Court on Monday, and is seeking an injunction requiring Spotify to remove these playlists and to permanently block other playlists that copy its compilations. The company is also seeking damages and costs.

Chief executive Lohan Presencer claims that his company has been asking Spotify to remove the playlists – some of which include "Ministry of Sound" in their titles – since 2012.

"It's been incredibly frustrating: we think it's been very clear what we're arguing, but there has been a brick wall from Spotify," said Presencer.

The news has been reported with a faint tone of derision, but it really isn't outrageous to suggest that copyright law might cover playlists.

After all, the selection and ordering of artistic works is itself a form of art. That may not be immediately obvious in the case of a Ministry of Sound compilation, but it's far more evident when looking at something like the Oxford Book of English Verse, or the annual Best American Comics anthology.

Almost every type of human creative action has been covered by copyright law. That includes maps, mathematical tables, and, since a Supreme Court case earlier this year, newspaper headlines. Part of the reason why society has yet to fall apart in lawsuit upon lawsuit is that copyright protection isn't absolute, like patent protection or trademarks are. If I invent a widget only to discover it's already patented, then I'm out of luck: the person who got there first owns the concept. But if I write a novel only to discover that someone else used the same concept, I'm in a better position. So long as I can prove that I wasn't actively copying the story, I should be safe.

(The easiest way to do that is to show I haven't read the other book, which is part of the reason JK Rowling won't read your ideas for Harry Potter sequels. But only part.)

There's a similar application of the law behind the old concept of "trap streets", streets shown on a map which don't actually exist in reality. If my map shows the invented "Thief Road" and then yours comes out a year later also showing Thief Road, I can be pretty sure that you didn't go out and make a record of every street – instead, you just copied mine.

So the real problem for Spotify is that their users aren't particularly shy about where they got their playlists from:

Whether Ministry of Sound can sue is a different question from whether they should sue, though. Some might say that, in an age where anyone can put together a playlist of 40 popular dubstep tracks in a matter of seconds, the label's business model of doing much the same thing but with a bit of cross-fading may be one worth consigning to the dustbin of history. Going out in a blaze of lawsuits just looks a bit tacky, really.

Photograph: Spotify

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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Why does the medical establishment fail to take women in pain seriously?

Women with mesh implants have been suffering for years. And it's not the only time they have been ignored. 

Claire Cooper’s voice wavered as she told the BBC interviewer that she had thought of suicide, after her mesh implant left her in life-long debilitating pain. “I lost my womb for no reason”, she said, describing the hysterectomy to which she resorted in a desperate attempt to end her pain. She is not alone, but for years she was denied the knowledge that she was just one in a large group of patients whose mesh implants had terribly malfunctioned.

Trans-vaginal mesh is a kind of permanent “tape” inserted into the body to treat stress urinary incontinence and to prevent pelvic organ prolapse, both of which can occur following childbirth. But for some patients, this is a solution in name only. For years now, these patients – predominantly women – have been experiencing intense pain due to the implant shifting, and scraping their insides. But they struggled to be taken seriously.

The mesh implants has become this month's surgical scandal, after affected women decided to sue. But it should really have been the focus of so much attention three years ago, when former Scottish Health Secretary Alex Neil called for a suspension of mesh procedures by NHS Scotland and an inquiry into their risks and benefits. Or six years ago, in 2011, when the US Food and Drug Administration revealed that the mesh was unsafe. Or at any point when it became public knowledge that people were becoming disabled and dying as a result of their surgery.

When Cooper complained about the pain, a GP told her she was imagining it. Likewise, the interim report requested by the Scottish government found the medical establishment had not believed some of the recipients who experienced adverse effects. 

This is not a rare phenomenon when it comes to women's health. Their health problems are repeatedly deprioritised, until they are labelled “hysterical” for calling for them to be addressed. As Joe Fassler documented for The Atlantic, when his wife's medical problem was undiagnosed for hours, he began to detect a certain sexism in the way she was treated:

“Why”, I kept asking myself, when reading his piece, “are they assuming that she doesn’t know how much pain she’s feeling? Why is the expectation that she’s frenzied for no real reason? Does this happen to a lot of women?”

This is not just a journalist's account. The legal study The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain found that women report more severe levels of pain, more frequent incidences of pain, and pain of longer duration than men, but are nonetheless treated for pain less aggressively. 

An extreme example is “Yentl Syndrome”. This is the fact that half of US women are likely to experience cardiovascular disease and exhibit different symptoms to men, because male symptoms are taught as ungendered, many women die following misdiagnosis. More often than should be acceptable, female pain is treated as irrelevant or counterfeit.

In another significant case, when the news broke that the most common hormonal birth control pill is heavily linked to a lower quality of life, many uterus-owning users were unsurprised. After all, they had been observing these symptoms for years. Social media movements, such as #MyPillStory, had long been born of the frustration that medical experts weren’t doing enough to examine or counter the negative side effects. Even after randomised trials were conducted and statements were released, nothing was officially changed.

Men could of course shoulder the burden of birth control pills - there has been research over the years into one. But too many men are unwilling to swallow the side effects. A Cosmopolitan survey found that 63 per cent of men would not consider using a form of birth control that could result in acne or weight gain. That’s 2 per cent more than the number who said that they would reject the option of having an annual testicular injection. So if we’re taking men who are afraid of much lesser symptoms than those experienced by women seriously, why is it that women are continually overlooked by health professionals? 

These double standards mean that while men are treated with kid gloves, women’s reactions to drugs are used to alter recommended dosages post-hoc. Medical trials are intended to unearth any potential issues prior to prescription, before the dangers arise. But the disproportionate lack of focus on women’s health issues has historically extended to medical testing.

In the US, from 1977 to 1993, there was a ban on “premenopausal female[s] capable of becoming pregnant” participating in medical trials. This was only overturned when Congress passed the National Institutes of Health (NIH) Revitalisation Act, which required all government funded gender-neutral clinical trials to feature female test subjects. However, it was not until 2014 that the National Institutes of Health decreed that both male and female animals must be used in preclinical studies.

Women’s exclusion from clinical studies has traditionally occurred for a number of reasons. A major problem has been the wrongful assumption that biologically women aren’t all that different from men, except for menstruation. Yet this does not take into account different hormone cycles, and recent studies have revealed that this is demonstrably untrue. In reality, sex is a factor in one’s biological response to both illness and treatment, but this is not as dependent on the menstrual cycle as previously imagined.

Even with evidence of their suffering, women are often ignored. The UK Medicines and Healthcare Regulatory Agency (MHRA) released data for 2012-2017 that shows that 1,049 incidents had occurred as a result of mesh surgery, but said that this did not necessarily provide evidence that any device should be discontinued.

Yes, this may be true. Utilitarian thinking dictates that we look at the overall picture to decide whether the implants do more harm than good. However, when so many people are negatively impacted by the mesh, it prompts the question: Why are alternatives not being looked into more urgently?

The inquiry into the mesh scandal is two years past its deadline, and its chairperson recently stepped down. If this isn’t evidence that the massive medical negligence case is being neglected then what is?

Once again, the biggest maker of the problematic implants is Johnson&Johnson, who have previously been in trouble for their faulty artificial hips and – along with the NHS – are currently being sued by over 800 mesh implant recipients. A leaked email from the company suggested that the company was already aware of the damage that the implants were causing (Johnson&Johnson said the email was taken out of context).

In the case of the mesh implants slicing through vaginas “like a cheese-wire”, whether or not the manufacturers were aware of the dangers posed by their product seems almost irrelevant. Individual doctors have been dealing with complaints of chronic or debilitating pain following mesh insertions for some time. Many of them just have not reported the issues that they have seen to the MHRA’s Yellow Card scheme for identifying flawed medical devices.

Shona Robison, the Scottish Cabinet Secretary for Health and Sport, asked why the mesh recipients had been forced to campaign for their distress to be acknowledged and investigated. I would like to second her question. The mesh problem seems to be symptomatic of a larger issue in medical care – the assumption that women should be able to handle unnecessary amounts of pain without kicking up a fuss. It's time that the medical establishment started listening instead. 

 

Anjuli R. K. Shere is a 2016/17 Wellcome Scholar and science intern at the New Statesman

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