There was a time, not even that long ago, when it seemed like Prince
might have been the first musician to actually "get" the internet
. He had done a few things that seemed really focused on embracing the internet, spreading his music more widely, and making revenue from alternate streams, such as concerts, sponsorships and fan clubs. But... it quickly became apparent that he was going in the other direction, and in an extreme
manner -- in part, because it seemed like for all of his ideas, he failed
at following through on most of them. Then, rather than blaming his own lack of execution, he seemed to lash out at the internet in almost every way possible. He insisted that the internet was over
and that he'd never put any of his music online. He even claimed that digital music was bad for your brain
He's also gone legal a bunch of times, suing
a bunch of websites, threatening fan sites
for posting photos and album covers on their sites, suing musicians
for creating a tribute album for his birthday, issuing DMCA takedowns for videos that have his barely audible music playing in the background
and 6-second Vine clips
that are clearly fair use.
Given that, many may not be surprised about his his latest lawsuit
against 22 fans who posted links to apparent bootleg recordings of Prince concerts, suing each of them for $1 million. However, the lawsuit takes it all up a notch from the insanity of his earlier actions. The lawsuit was first spotted by Antiquiet
and got some attention from Spin
, though neither seem to understand just how nutty the lawsuit actually is. Spin, incorrectly, claims he's suing "webmasters," but even that's not true. He's suing a bunch of users of Google's blogger platform and Facebook for linking to apparent bootlegs.
And that's not even the most bizarre part of the lawsuit. The lawyer who filed the lawsuit on behalf of Prince, Rhonda Trotter
, claims to be an expert in copyright law, but you wouldn't get that from reading the lawsuit. First off, the main charge is for direct copyright infringement
, but nothing in the complaint actually describes direct copyright infringement. At best
(and even this is a stretch), you could argue that linking to files, all hosted on other sites, represents indirect
infringement. Multiple courts have repeatedly made clear
that linking is, at best, indirect infringement. And this lawsuit was filed in the Northern District of California, meaning it's in the 9th Circuit, which decided the Perfect 10 v. Amazon
case that very clearly says that linking is not direct infringement. You'd think a copyright lawyer -- especially one based in the 9th circuit -- would know that.
Then there's the fact that Prince is suing each of the defendants for $1 million. The complaint seems quite confused about what it can ask for. While it does point to 17 USC 504
, which lays out the damages that an infringer may be liable for, Trotter doesn't seem to understand how that section of the law works. It's pretty clear upfront that you get to ask for either
"actual" damages or
statutory damages. Most people ask for statutory damages, which can range from $750 to $150,000 per work infringed. Note that this is less than $1 million. How Trotter gets this up to $1 million seems to be... well... by magic:
In addition, Prince has suffered and is continuing to suffer damages in an amount according to proof, but no less than $1 million per Defendant and, in addition, is entitled to recover from Defendants costs and attorneys' fees pursuant to 17 U.S.C. § 505.
Prince is also entitled to recover statutory damages pursuant to 17 U.S.C. § 504 in an amount according to proof, but no less than $1 million per Defendant.
So... that first paragraph suggests there's some made up formula, by which they're going to claim that he's suffering actual damages
over $1 million -- an argument that would almost certainly be laughed out of court, because proving actual damages in copyright infringement is no easy feat -- especially when it's a fan linking to a bootleg
, where the "damage" is likely to be next to nothing. But then the lawsuit seems to incorrectly suggest that they can also
get statutory damages. But you can't. The law is pretty explicit that it's an either-or thing. A copyright lawyer should know that. A copyright lawyer should also know that the limit on statutory damages is $150,000 per work. It is true that some defendants are listed as linking to multiple songs, so you could try to add up the $150k on each to get over a million, but at least one of the defendants is only accused of sharing 3 songs, which would cap the possible damages at $450k. But not in this lawsuit.
Oh yeah, and to get over $30,000, of course, you have to show willful infringement. The lawsuit claims that the "defendants' actions are and have been willful within the meaning of 17 U.S.C. § 504(2)." That's interesting and all, especially since there is no such section in the law. Trotter almost certainly means
17 USC 504(c)(2), but leaving out the (c) kind of shows just how ridiculously confused and sloppy the entire lawsuit is.
But even stepping back from how poorly drafted the complaint is, let's take a step back and ask the basic question: what sort of musician, in this day and age, thinks it makes sense to sue nearly two dozen fans for sharing bootlegs
of their music on the internet -- an action that tends to be both the pinnacle of fandom, combined with almost certainly no actual
loss of revenue. Fans interested in bootlegs tend to be the kinds of fans who buy everything
and spend tons of money on live shows as well.
Once again, this seems to just be the nutty mind of Prince in action, concerning his ridiculous desire to control absolutely everything
combined with someone who is not entirely in touch with reality. Every time I hear a story like this about Prince, I'm reminded of Kevin Smith's absolutely hilarious
story about his experience with "Prince World."