by Mike Masnick
Thu, May 19th 2011 12:18pm
by Mike Masnick
Fri, May 13th 2011 7:17am
from the you-get-three-guesses dept
Of course, $105 million is significantly less than what the RIAA had been asking for -- with the judge practically mocking the labels at one point for suggesting that Limewire was on the hook for $75 trillion -- or "more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877." $105 million is also significantly less than the $1 billion that was the whisper number making the rounds that the labels were demanding.
The real question, though, is what will happen to the money, and how much of it (if any) will actually go to any of the artists signed to those labels. If any RIAA label artists receive a check from this lawsuit, please let us know. I expect we'll be waiting a long, long time. In the meantime, we're still curious if this shutdown of Limewire has resulted in any increased sales. A couple months ago, we had an interesting discussion on the topic, and looked at some evidence on both sides. I think it may be too early to tell, but it'll be worth watching to see what the eventual evidence shows.
by Tim Cushing
Fri, Apr 29th 2011 10:23am
from the it's-not-75-trillion-but-it's-a-start dept
The RIAA believes it is on the cusp of victory in its lawsuit against Limewire, thanks mainly to its large selection of damaging charts. However, it seems to be expecting the worst, if these leaked documents are any indication. All evidence below indicates that the RIAA will be willing to settle for only $15 billion (out of a possible $55 billion). Not only that, but it already has plans in place for the dispersal of the Limewire settlement.
First and foremost, the legal war chest must be refilled. It never sleeps and it is always hungry. Copyright won't protect itself and every battle to secure these rights has become long, uphill and against the wind.
A $15 billion payout doesn't come around every day and our executives are justly entitled to a large chunk of that ($3.15 bil.). As an added bonus (to the bonuses), all executives will be treated to a celebratory blimp ride ($2.25 bil.). This dollar amount seems high until you consider that each executive will be requiring their own blimp. Previously, the executives had shared one blimp, but in the post-Napster environment, "sharing" is obviously no longer a legal option.
Other line items include the ongoing efforts in Washington to impose the RIAA's will on the internet, research and development and the opaquely-named "Other Expenditures."
(1) Other Expenditures
Having run the "Stealing a Song = Stealing a Car" analogy into the ground, we need a new "go to" catchphrase. Hence, $1.05 billion should be earmarked for development of a new anti-piracy metaphor. Suggestions include:
- Stealing a song is like stealing a yacht.
- You wouldn't steal popcorn, would you?
- There's no such thing as a free lunch, free song or an infinite good.
- File sharing is as un-American as immigration, outsourcing and opium production.
- You wouldn't steal a blimp, would you?
- Stealing a song is like kidnapping an artist's children and is punishable by a sentence of 25 years to life.
Other incidental expenditures include a much-needed re-upholstering of the executive suites and a celebratory hot tub full of money to splash around in with various members of the escort community, each of whom will be paid in full for their services, including any fees due for public performance.
(2) Research and Development
A lion's share of the payout will go towards the ongoing development of a time machine/wormhole to 1991 ($450 million). Many recent efforts have come close but the RIAA has yet to reach the pre-Napster days and develop a parallel timeline in which CD sales increase forever. On the plus side, it did manage to get our mom to hook up with our dad, thus ensuring our continued existence.
Other products/services on the way:
- A computer-unfriendly music delivery system, much needed in this time of digital theft. Wax cylinders have been discussed as well as a partnership with RealPlayer, whose clumsy, bug-ridden software would likely prevent music from being enjoyed on a wide variety of operating systems.
- "Lost Sales" calculation improvements, which should allow the RIAA to seek even larger damages from various file sharing services. It is hoped that we will finally reach the trillion dollar mark within the next decade. In addition, breakthroughs should also be sought in the "Shocking Graph" field, what with the recent success of the "Napster Ruined Everything" line graphs.
- A partnership with the developers of The Club to prevent music from being stolen. A possible route would be some sort of clamp that could be tightened around an ethernet cable to prevent uploading. In other words, not so much "throttling" as "strangling."
- Domain seizure technology, via the RIAA's partnership with ICE, which has already proven its ability to take thousands of sites offline despite lack of evidence or proper investigative techniques. On the front burner: cooperating with ICE's takedown of many large pharmaceutical companies who continue to make themselves rich off various anti-seizure remedies, including the weirdly-named Antivan and Dilantin.
Royalty disbursements, as expected, will be delivered in a "top down" fashion. Those artists with the most sales will receive a disproportionately large share of the proceeds. After the "Big 3" are taken care of (and a chunk of money thrown towards Paul McGuiness in hopes that some of it lands in his mouth), the remaining funds will be dispersed to yet more lawyers and an appreciable amount ($300,000 ) put towards the ongoing health of Jon Bon Jovi's remaining hair. It is hoped that he will be able to put off his eventual "Trump Hair" for another 7-10 years, thus ensuring his continued success in the field of "fairly attractive frontmen." See footnotes for royalty dispersals.
$300,000 will be divided evenly among those artists currently in the Top 40 at the point of dispersal. If said artist happen to include any of the "Big 3," well, I suppose the rest of you should just write better hits, right? There's no crying in the music industry, especially if you're unrecouped.
The remainder of the RIAA's roster will split $150,000. To qualify for payment, bands/musicians must have a viable Wikipedia page (stubs and pages slated for deletion do not count) and a web presence that includes more than just a long-abandoned MySpace page. (Try Facebook.)
by Mike Masnick
Tue, Mar 22nd 2011 2:56pm
from the back-to-square-one dept
Unfortunately, after a few years of fighting back and forth, Google caved, with a "settlement" that was hardly a "settlement" at all, but rather a way for Google to effectively lock up the online book scanning business all to itself. I thought this was disappointing for any number of reasons, and many people agreed, leading Google and the Authors Guild to scrap the original settlement for a new one that was only slightly more reasonable. It still seemed more like a business deal, rather than a settlement, and still ignored the key fair use questions raised by the lawsuit.
Today, however, a district court judge has rejected the settlement. The full ruling by Judge Danny Chin is embedded below, but the short version is that the settlement was rejected because, as with the original settlement, this was more of a business deal in which Google benefits at the expense of competitors. That part, I'm fine with. Where I'm more troubled is that Chin claims that this settlement "rewards" Google "for engaging in wholesale copying of copyrighted works without permission."
The ruling does acknowledge the many, many benefits of Google's book scanning project:
The benefits of Google's book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books -- particularly out-of-print books, many of which are falling apart buried in library stacks -- will be preserved and given new life.I agree with the decision to dump the settlement. It seemed clear that the settlement goes way beyond the issues in the case to create a separate right that perhaps the Authors Guild had no right to negotiate over. And that seems to be the key concern by the judge. The judge suggests, if anything, that Congress is the proper party to step in here and define the rights over these kinds of books.
The judge does acknowledge the fair use argument, but really only to point out that it was the crux of the lawsuit, but is more or less ignored by the settlement. He does seem to suggest that the fair use defense wouldn't fly here, but doesn't go into any thorough analysis. I'm a bit disappointed by that, because I still think that the fair use claim here was strong, and claiming that this was clear infringement is misleading and will be a problem down the road. In fact, the analysis on the copyright issues reaches somewhat troubling depths, suggesting that it found claims from authors of moral rights to their works -- which are not recognized in the US -- persuasive, in arguing that the scanning was infringement.
In the end, rejecting the settlement was probably the right move, but I'm troubled by the suggestion that the scanning itself was clearly infringement, and the skipping over of fair use as an important issue here, compounded by the acceptance of moral claims from authors that they "don't want" someone digitizing "their" works.
by Mike Masnick
Wed, Jun 9th 2010 10:12pm
from the rock-on dept
by Mike Masnick
Thu, Feb 11th 2010 12:37pm
Record Labels Basically Admit That Statutory Damages Out Of Proportion As They Ask For Third Jammie Thomas Trial
from the groundhog-day dept
Still, the actual filing from the RIAA's lawyers has some interesting claims (pdf):
While Plaintiffs do not believe that either verdict was improper under the law, or that the second verdict should be remitted, they would have considered accepting a remittitur simply so that this case could finally come to an end. However, any remittitur must otherwise be consistent with the law and be guided by what actual juries have awarded under similar circumstances. Unfortunately, Plaintiffs find it impossible to accept a remittitur that could be read to set a new standard for statutory damages -- essentially capping those damages at three times the minimum statutory amount of $750 (or $2,250) for any "noncommercial individuals who illegally download and upload music." (Id. at 2, 25.) This far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact.It's a bit of a stretch to claim that this would be a cap on "any" unauthorized noncommercial file distribution. I would imagine that any court still has the right to take into account the specific circumstances to make sure the award is proportionate to the rights being violated. The labels' lawyers are stretching what the judge said here.
Indeed, Congress has spoken on this very topic. Congress deliberately and purposefully established a range of statutory damages that applies without regard to the commercial motivation of the defendant.I find this statement funny, because they then cite what Congress said way back in 1999. Fair enough, Congress (which basically just took RIAA talking points and put them into the Congressional record) did make those comments -- but these are the same entertainment industry lawyers who supported a "secondary liability" or inducement standard in the Grokster case, even though Congress had specifically rejected an attempt to put an inducement standard into the law. And when confronted, how does the RIAA explain that? Well, they say "the situation changed." Ah, so it's okay to have the courts change copyright law when the situation changes in one direction, but not the other?
What the judge was doing here was recognizing that the amount the jury awarded was clearly out of proportion to the actual infringement -- just as the courts in Grokster supposedly recognized that an inducement standard made sense in shutting down third parties (something I disagree with, but it's how the court felt). It seems that the RIAA and its lawyers have a massive double standard here.
A rule that the maximum permissible award in cases involving so-called "noncommercial" infringers is three times minimum statutory damages also ignores the harm caused by such infringers. From an economic perspective, individuals who give away copyrighted works illegally can cause as much harm as those who sell those works illegally, particularly when the so-called "non-commercial" infringer uses a P2P service. The notion that an infringer who does not make a profit should automatically be entitled to better treatment than an infringer who does make a profit is found nowhere in the law. The "not for profit" infringer is hardly entitled to special protection, which is why Congress conferred no such protection.Again, Congress also conferred no such thing as an inducement liability, but the courts -- at the urging of the RIAA -- conferred exactly that via the courts. Why such a double standard?
The Court's cap would set a new ceiling such that no copyright owner could effectively enforce their rights unless they could and did sue on numerous works. No copyright owner would be motivated to enforce its rights where it could only sue on a handful of works because the potential recovery would be too limited. Congress set a wide range of statutory damages for copyright cases precisely because plaintiffs need to be incentivized to bring appropriate cases to enforce their rights -- even those who own a small number of copyrights or those who only have a limited number of works infringed. Conversely, the Court's artificially depressed cap compels parties with a large number of copyrights at stake to sue on all of them, rather than a more modest number. This serves only to increase the discovery and trial burdens on parties and courts. Yet the Court's inflexible "three times" cap would invariably penalize plaintiffs with a small number of works at issue, and would force those with a lot of works to add to their complaints unnecessarily.Woe is the RIAA. If the awards for unauthorized sharing of a $1 song that might help promote their artists and help them make more money (if only the RIAA were to adapt to a changing market place) might "only" be 2,250 times the market price of the song? Cry me a river. And, even more ridiculous is the claim that this is some undue burden on the RIAA that it might have to actually sue over all of the songs someone distributed in an unauthorized manner, rather than just selecting a handful as it does now. This is a major issue. Technically, the RIAA has been able to just pick a couple dozen songs and sue over those, knowing that the totally disproportionate statutory damages will "cover" the rest. But does that seem right to anyone? The idea that rather than proving the actual harm done by the actual distribution, the RIAA is allowed to just pick a "sampling" and without proof get back many times the price without even presenting any actual evidence of the wider damage or the wider distribution of more files?
It seems perfectly reasonable to expect the RIAA should have to actually include what they claim was infringed, rather than being able to just pick a handful, knowing that the totally out of proportion statutory damages will "cover" the rest.
In fact, the paragraph above is effectively the RIAA admitting that it knows the statutory damages are out of proportion, but it believes it's fair because the RIAA is too cheap and too lazy to actually sue people for what it claims they infringed on.
Talk about a sense of entitlement.
Still, as we've said for a while now, this is a really bad case all around. It's pretty clear that Thomas-Rassett was involved in widespread infringement, and then lied about it. If people are going to challenge ridiculous statutory rates and other aspects of copyright law, this is really bad case to do that (ditto for the Tenenbaum case). This is one where it seems like she really might have been better off settling early and moving on. And the oddity of the judge reducing the jury award just makes this whole case into something of a circus...
by Mike Masnick
Wed, Jan 27th 2010 2:45pm
Jammie Thomas Rejects Offer From RIAA To Settle For $25k Plus Request For Judge To Vacate Last Week's Decision
from the and-so-it-goes dept
by Mike Masnick
Mon, Nov 16th 2009 3:22am
from the doesn't-really-change-much dept
In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.
Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.
Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.
by Mike Masnick
Tue, Sep 22nd 2009 6:58pm
from the reading-the-unscanned-tea-leaves dept
by Mike Masnick
Fri, Aug 14th 2009 1:12pm
from the tell-that-to-Jammie dept
First, what's stunning is that the brief claims the awards are perfectly constitutional because it is not "so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable." Really? It seems that an awful lot of people find the idea of being forced to hand over $80,000 per song without any evidence that it was ever actually shared by anyone is severe and oppressive to the point that it's disproportionate to the offense and quite obviously unreasonable. I mean, this is a woman who wanted to listen to her favorite bands, and she now has to pay nearly $2 million. How can anyone claim that's not "severe and oppressive" in relation to the actual "harm" done?
Second, the brief claims that the damages should be much more than the $1.29 price per song found on iTunes, because it "ignores the potential multiplying effect of peer-to-peer file-sharing." Except, if that were the case, shouldn't the plaintiffs been required to show that these songs were actually shared? And should Thomas also be liable for the actions of anyone else she shared the songs with? That seems to go quite beyond what the law states.
Third, and perhaps most troubling, is the Justice Department's sneaky little claim that the statutory rates are obviously fair for file sharing, because they were put in place in 1999, with the explicit statement from Congress that these numbers were there because of internet file sharing. That sounds good, but ignores the fact that this little change in the law was pushed almost entirely by entertainment industry lobbyists (the same folks who now run the Justice Department!) to protect their dying business model, rather than through any empirical evidence. The real original purpose of statutory rates had nothing to do with punishing personal, non-commercial use, but were very much about dealing with commercial harm.
It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges. Regulatory capture at its finest.