Liability for corrupt ftp transmissions

  IClaudio 16:14 03 Apr 2011
Locked
Answered

Apologies if this has been covered before, I've Searched to no avail...

A week ago, I uploaded a large audio file to a Replication plant's ftp site (actually, the ftp site belongs to an intermediary broker). They would be using this image file to manufacture CDs.

Technically, I created what is called a DDPi fileset, that is, Disk Description Protocol image along with several small files which describe the track index points, CD-Text and so on of this particular CD. Along with these audio-related files, I created a checksum file - this, almost universally, is used by the recipient plant to compare the uploaded file with the file on my local computer.

In this case, however, the plant, for reasons best known to themselves, didn't run the checker, and so missed the fact that the upload had become corrupted and a minute's worth of silence had somehow appeared in the audio file - they went on to press several thousand useless CDs.

The plant was contracted on the record company's behalf by an intermediary broker (quite normal these days) who has a number of contacts and obtains the best deal for each project.

The record company, of course, called me and asked for my comments, and I told them that I had included the checksum file, and that the plant should have run the checksum (the check takes 15 or 20 seconds).

The plant has since owned up that they should indeed have checked, and are willing to re-press at their expense - the broker, however, insists that I should pay the (quite exorbitant) costs of unpacking/re-packaging the fault CDs, as it was my upload that is corrupted.

I haven't been able to find any rulings on the liability in this kind of case, does the panel know of anything?

I'm pretty well decided that I should actually meet the costs, as my client, the record company, is happy for me to spread these over the next few projects - but at the same time, it's galling that the broker should just sit back and not take any part of the blame (after all, the ftp site is his and I guess it may well be a corrupt hard drive at his end...)

  Batch 18:12 03 Apr 2011

IMHO it depends entirely on what is in the contract (between you and the broker by the sound of it).

  Batch 18:20 03 Apr 2011

But thinking about it a bit more, most contracts seek to exclude liability for consequential costs, loss or damage.

So, even if your contract was directly with the plant, any typical default standard contract would probably include something that specifically excludes consequential liabilities. Even contracts that have been specifically negotiated (i.e. not standard contracts) would seek to exclude consequential liabilities.

  IClaudio 18:48 03 Apr 2011

My contract is actually with the record company, and not a written contract, they just call and say 'would you like to do this project?' So, nothing specifically about liability for transmitted files.

Another way of delivering files to pressing plants is ordinary audio wav files on CD, or the DDP fileset on DVD (because the audio plus the other files would exceed the storage limits of a CD). If the postman dropped the CD or DVD and stepped on it, would that make me liable?

  Batch 19:28 03 Apr 2011

It is quite a complex set of circumstances and could depend on so many factors.

I think I am right in saying that, in the absence of anything to the contrary (which sounds like it might be the case), consequential liabilities may be included. So, again taking the example of you having a verbal arrangement/contract directly with the plant (which didn't exclude consequential liability) then the plant might be held liable.

Another factor that would come into play is whether the pressing and packaging were all being done by the plant as part of a single arrangement (as opposed to the plant pressing the CDs and another party being separately contracted [not via the plant] to do the packaging). In which case there would be a much stronger case for the plant being liable even if consequential liabilities were excluded.

Of course, if there is no written contract that explicitly states that the plant should have run the checksum, they could argue that they weren't liable anyhow. But then if it is industry standard practice, their case would be weaker.

Sorry, but it isn't going to be cut and dried and given the inherent complexities (four parties - you, the record company, the broker and the plant [and a fifth if the packaging is a separate entity); the lack of any written contract; the lack of clarity over whether the plant had any contractual obligation to run the checksum etc. etc.) IMHO you would need to consult a lawyer. It wouldn't be cheap and you would have assurance of winning. So maybe you just have to take it on the chin.

  robin_x 19:29 03 Apr 2011

I used to design circuit boards and contractors would quote and manufacture the design based on our (my) Purchase Specification.

We did not just send the artwork and ask for some circuit boards.

It was hassle to do this but essential.

You may like to consider similar.

CDs should be ISO whatever size/encoding/colour/manufacturer etc.
The content shall be File1, 2,3 etc.
Provided by ftp/email/post
Volumes shall be...Dynamic Compression shall be...
Silences shall be a certain SNR/duration/type?
(can you get types of silence?)
Checksums x,y,z SHALL be checked

Nail down every thing that can go wrong.

Get prototypes/pre-production samples if possible.
Dunno if that works in the CD industry.

Hope your present contract gets sorted.

  IClaudio 20:46 03 Apr 2011

@Batch
Yes, the packager is yet another entity... the broker is the intermediary collating all these elements for the record company (except me, as I've worked for the company for decades, and they approached me for this project...)

I am a member of the Audio Professional body, who offer free legal advice, so I shall be calling them tomorrow.

As you say, I shall probably just take it on the chin!

@robinofloxley
No, not ISOs, which wouldn't include CD-Text and PQ points (which indicates silences etc.).

'Nail down every thing that can go wrong.' This is something that hasn't really been addressed in the audio world, but several people have seen my case and it seems that moves are afoot to get some kind of charter in place, so that Replication plants and recording studios can agree a working practice.

It's amazing that this hasn't been implemented before now!

  Batch 08:36 04 Apr 2011

Just re-read my last post and the penultimate sentence should have read:

"It wouldn't be cheap and you WOULDN'T have assurance of winning"

  IClaudio 12:01 13 Apr 2011
Answer

Update:

After quite a bit of wrangling, the broker in question, along with his Replication Plant, has accepted full liability. And surprisingly, he didn't take me up on my offer to share some of the costs...

This thread is now locked and can not be replied to.

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