RIAA Seriously Smacked Down (Again) By Judge
from the worth-reading dept
The RIAA’s track record in court hasn’t been so great lately. After being forced to drop various lawsuits once it was pointed out to the RIAA that the suits were targeted incorrectly, the RIAA has tried (and failed) to get out of paying the legal fees of those they incorrectly sued. The latest ruling comes from a judge who already told the RIAA it needed to pay fees. Now he’s reaffirmed the decision and explained it quite clearly to the RIAA. The quotes are absolutely worth reading at that link, as the judge highlights the fact that copyright isn’t solely for the benefit of the content creator/owner, but for enriching the public domain, and that gives anyone accused of infringement strong defenses to their use of the content.
The judge also challenges a bunch of questionable or misleading claims by the RIAA, basically suggesting that the RIAA was assuming he wouldn’t actually look into any of its claims. For example, the RIAA filing claimed that there were no “reported” cases where attorney fees were awarded without using a specific test, but the judge looked around and quickly found that there were many unreported cases, including ones against the exact same plaintiff. So the claim my be truthful that there were no “reported” cases, but ultimately misleading. Trying to trick a judge that way doesn’t tend to end well. Also, rewriting history doesn’t work well, as the judge points out the RIAA tried to do in claiming that it had offered the defendant a way to settle without paying anything. As the judge says: “Of course, that is not true. By the time the plaintiffs offered to dismiss their claims against the defendant, she had made a considerable litigation investment, and would have been required to pay those expenses already incurred. Furthermore, the plaintiffs offered merely to dismiss their claims without prejudice, thus leaving the defendant exposed to continued litigation in the matter.” There’s a lot more like that in the decision, including the judge pretty much slapping the RIAA down for suggesting that it may have won the case anyway… It’s nice to see judges are recognizing the real issues in these cases.
Comments on “RIAA Seriously Smacked Down (Again) By Judge”
Nice ….. …
about time
OMG these mujst be those “activist judges” I’ve been hearing so much about.
Activist Judges?
Activist Judges are ones that go outside their constitutional duties and change the wording of the law. That is the duty of the legislative branch not the judicial branch. And if you actually payed attention you would have realized the activist judges you read about usually roll over for the side with the most money.
Re: Activist Judges?
If you had PAID attention you would have spelled that word correctly. If you had PAID attention you’d know that ‘activist’ judges tend to rule against the moneyed interests and get labeled ‘activist’ so that people who don’t PAY attention or haven’t PAID attention repeat their glib assertions as truths..
Carry on
Re: Re: Activist Judges?
What and you don’t think that “non-profit” organizations don’t have any serious cash? In some cases they have more money and more influence than corporations. Just because a judge sides against a corporation doesn’t mean that he isn’t getting paid. Influence and press can be just as bad as money. Which is why I am a strong believer in limiting press coverage when it concerns ongoing investigations, cases or court battles. Remember, that’s how OJ got off. He appealed to the press and gave them unprecedented access and that incidentally gave him a stage to ridicule the evidence that the state had against him. That court battle was fought in the media. And since then so has a lot of other major trials.
RIAA
Sorry to be obtuse but what is the RIAA? It always helps if you explain these things for “normal” readers.
Re: RIAA
Google it regular reader!
Re: wow
ok, so most people assume if you’re reading techdirt, that you will know what the RIAA is. 1 out of 10 stories on techdirt involves them somehow these days.
RIAA = Recording Industry Association of America
MPAA = Motion Picture Association of America
both of who are facist censorship agencies who for some reason are allowed to dictate morality to the masses without an ounce of public citizen oversight.
Re: RIAA
RIAA is an acronym for The Devil.
Re: RIAA
just look it up, lazy fuck!
One Judge for Good... Many still for Evil...
Now if we could just get certain judges in Texas that handle Patent cases to get a clue…
http://www.techdirt.com/articles/20060203/0332207.shtml
Thank you, Judicial Branch.
But there's still ...
Now if only we could get some judge to smack down that nasty Copyright Royalty Board decision that’s going to kill internet radio in a few weeks.
Re: But there's still ...
Haha, Ellen, I almost linked you the savenetradio.org link..
For anyone who didn’t click Ellen’s name, go there and take action. I don’t want Pandora.com to go away. 🙁
Later!
Nice to see a judge that actually cares about justice instead of taking the easy way out! What boggles me is the RIAA’s unwillingness to address the fact that the video game industry has a LOT to do with declining CD sales, a lot more than downloaders. (Support encrypted file-sharing: http://www.gigatribe.com !)
This seems to open the way for highly paid lawyers to work for the average persons in cases that the defendant is clearly right, because the RIAA’s big pockets could get stuck with the legal fees. At least now the RIAA will have to consider if they have a winnable case and not just try to bleed people into submission.
There is nothing wrong with artist being paid, but the focus of the RIAA should be the major players, not 12 year old kids and their parents.
I knew it!
The RIAA was bound to run into a judge with a massive ego. They’ve gotten so full of themselves the RIAA thinks it can just turn any judge’s courtroom into an ATM.
It’s good to see that the judges are starting to wise up.
I guess the RIAA didn’t pay him enough…
Hit 'em in the best spot
The only way to get people like those that run the RIAA to stop this type of action is to hit them hard in the pocket book. I was there was some way to not only make them pay for the legal fees but to punish them as well for harassment.
lawyers swarm
Lawyers will more readily defend the accused now that they see money can be made from the RIAA having to pay expenses. In fact I could see lawyers seeking out those who have gotten the “pay up” letters from the RIAA
Forgive the repost, but I typed this out for a response to YESTERDAY’S RIAA article which immediately got bumped off the front page, so I’m sure nobody saw it…I want my useless internet ranting to be heard!
I am a musician and let me state up front that I hate corporate music, the RIAA, and all they stand for. I think they’re largely responsible for ruining modern music as we know it. I am really looking forward to the major labels collapsing, Soviet Union style. So I follow this news with interest.
BUT – I’ve gotta call bullshit on all the posters whose constant refrain is “musicians will just make it up in touring and t-shirt sales”. Only someone who has never been a musician, never been friends with a musician, or who only goes to see live music once every five years could actually believe this.
Nobody makes money touring until they reach a certain level of hugeness. The examples that get thrown out of bands raking it in from touring are always hippie jam bands who have a young audience with rich parents that can foot the bill while they follow them around for a year. For smaller bands, touring is a money-losing proposition. Selling t-shirts and records at gigs is a way to pay for the gas to get to the next town, NOT to finance the whole expedition. Trust me, gas prices have tripled in the past few years but the cover at clubs that have live music has not risen at all. Bands also get screwed over by sleazy club owners at every turn, I might add.
I can (or could) sell a few thousand records worldwide whenever I put out a release. Enough of a fanbase to warrent releasing a record, but not enough to justify constant touring. I may have a couple fans in every big city. Some areas more than others, of course, but you get the idea. As you can imagine, it’s one thing to sell enough records to make back your money (plus a small amount on top, if you’re lucky) to these scattered people. However, it’s just not economically possible to reach them on tour.
I am on a small independant label run by ONE GUY who makes no money, doing it because he loves the music, and he has complained repeatedly about how his sales have slid in recent years. Meanwhile, albums by bands on his label keep showing up on file-sharing sites. I myself meet people constantly at my shows who tell me they heard my album on Soulseek or whatever (who don’t go on to buy a cd or t-shirt from me, by the way!). I might add that my label does primarily collector-y LPs with nice artwork (that “added value” that’s supposed to save us).
So please, just say that you like getting music for free and that even though it is indeed stealing it’s the way things are going and the business is going to have to adjust. But save me the “new business model” tripe. Downloading and file sharing does indeed hurt smaller labels and musicians, not just Metallica and Britney Spears. What this is going to mean, in the short term, is FEWER bands touring and the ones that do making even LESS money. (Hell, with cds removed from the merch tabel, that’s ONE LESS thing I’ve got to sell on tour now! I better hope everybody likes that t-shirt design!)
Re: Re:
I have to admit I’m a little tired of the “new business model” chant myself. But I do think those chantters are on to something. A business model that takes advantage of the fact that people want digital distribution would work wonders.
The big labels have to realize that they can’t charge outrageous prices for CDs now. A big part of the reason Mike and many of the posters here are angry with the industry is that instead of trying keep up with the times those fancy pants executive are crying foul, claiming to be protecting artists, and sue people in order to keep their own (all that money damn sure isn’t going to the musicians) pockets. If the labels were so damned concerned about muscians then they would try to find a way to stay profitable instead of bullying people and paying the government for a few customized laws.
Re: Re:
That statement is provably false.
Re: Re: Re:
ok we’re waiting – prove it false!
all the musicians I know slave away at day jobs until they go on tour. then they either use all their vacation time for the tour, or quit and look for another job when they get back.
and they don’t come home with pockets bulging with dough.
Re: Re: Re: Re:
ok we’re waiting – prove it false!
OK. Most of the musicians I know, myself included, have never made ANY money selling albums. They make all their money touring local venues. So they are already making more money performing than collecting royalties.
all the musicians I know slave away at day jobs until they go on tour.
What? Their royalty checks don’t cut it?
then they either use all their vacation time for the tour, or quit and look for another job when they get back.
Nevertheless, it sounds like the tour still pays better than their regular jobs. Or else why do it?
and they don’t come home with pockets bulging with dough.
I’ve got news for you, most people don’t go home from work with their “pockets bulging with dough”.
Re: Re: Re:2 Re:
I know a group who DO ‘come home with their pockets bulging with dough’….bakers who are stealing from the bakery!!!!
Re: Re: Re:
It’s provably true that satanic space aliens are controlling the RIAA.
Hey, if you can say that something is provable without actually providing any from of proof, so can I. 😛
Re: Re:
first of all, I want to sympathize with your state of broke-ness, unless you suck as a musician, (which I can’t judge as I haven’t heard your music, maybe mentioning a name here might even give you some new fans, as well as boost the authenticity of your broke musician claim, but I digress) since I don’t have any sympathy for a broke (for example) plumber who sucks at his job either.
Only someone who has never been a musician, never been friends with a musician, or who only goes to see live music once every five years could actually believe this.
Now, this makes my a little suspicious, because I and my wife happen to be friends with several musicians, in several genres of music, none of them “main-stream” or Britney Spears big, yet all of them seem to be making a decent living with their music…even though probably nobody of a mainstream audience has heard of them, or would say oh yeah, I’ve been to their concert(s) or bought their album(s)….
In fact, one of them, sells his latest record (which is self-produced and self-released) for $10 and makes a profit (obviously)…and makes a decent living performing
And I do know what I’m talking about, because even though he’s a “real” artist, not a wedding singer, because we’re such good friends with him, he was willing to play at our wedding (not in a wedding singer kind of way or typical wedding singer tunes, a performance/concert like if you’d go see him in a venue). He waved his fee but we did pay the other members of the band he assembled. And I have to say, even performing 3 times a week, those guys could definitely make a living as a musician…
another point I’d like to make, related to one of your later replies, about selling cds at concerts: let’s say we magically ban p2p etc…, cds are (again) the only way to appropriate your music…wouldn’t most people who come to your concert, as you’re not played on radio, nor downloaded, already have your cd? why else would they come to your concert, as I am sure most people don’t go to a concert and pay money to hear a band they haven’t heard before, I sure don’t and most people I know wouldn’t.
In fact, an example of the opposite mechanism: my step daughter’s boyfriend will look at venues, see who’s playing, and if there are bands coming he doesn’t know or knows little about, he will download (some of) their music and decide whether or not he’ll go to a concert. Furthermore, if he likes the concert, he usually ends up buying cds and/or a t-shirt.
Not to sound glib or whatever, but it sort of does sound like you either are bogus, or your band/music is just not meant to be profitable…
Re: Re:
and I don’t want to seem like I’m harping on you, but
I can (or could) sell a few thousand records worldwide whenever I put out a release. Enough of a fanbase to warrent releasing a record, but not enough to justify constant touring. I may have a couple fans in every big city. Some areas more than others, of course, but you get the idea. As you can imagine, it’s one thing to sell enough records to make back your money (plus a small amount on top, if you’re lucky) to these scattered people. However, it’s just not economically possible to reach them on tour.
A “mainstream” record company, heck, even an alternative one, in the “old days” wouldn’t have produced your cd and distribute it to stores to those “couple of fans” in every big city. In fact, part of the reason selling a few thousand records worldwideis possible and profitable is because of the internet.
In the “old days”, no record company would have given bands/musicians with that size of fan base the light of day, and they wouldn’t have gotten further than somebodies garage and playing some local gigs…the point I am making is: those bands/musicians weren’t making money back then, if anything, it was costing them money too…
Let’s go back in time, to pre p2p/internet: you say you have a fan base is of a couple of thousand worldwide. Let’s say a couple of hundred of those are in the US, the rest is over seas (I can’t say for sure of course, but statistically, a couple of hundred is already a lot if you compare the US population to the world population).
Heck, let’s even make it 500 domestic. And since they are spread out, in pre-internet times, I doubt those two fans in Seattle would ever have found out there was a cool (local) band in Georgia (for example), so if of those 500, in the old days, you had 50, I’m thinking that’s not an underestimation, and even if it is, I’m assuming the 500 domestic is an overestimation, so I’m confident the two will cancel each other out for the most part…
the point: your fan base in the old days wouldn’t have made your music, or your touring profitable either, in fact, in the old days you wouldn’t have been able to get a record company to release your cd
Hey you, muzician...
Nobody said that living off music production is your inherent right.
You have the following options:
1) Compose great music that many people would love it; release it widely, do great tours, earn big money, live off it.
2) Do burger flipping for living; compose that sh*t that nobody likes in your own garage.
The society as a whole would win in both cases. Natural selection, baby.
Re: Hey you, muzician...
Sigh.
Nobody _claimed_ living off music production is anyone’s inherent right. Neither did anyone say that responding to an honest, informed, patient, thought-out explanation with a glib, self-aggrandizing smackdown is anyone’s inherent right… which of course it is, known commonly as Freedom of Speech (with caps, always).
Regardless, I should point out that if the music industry focuses only on musicians that produce what enough people consider Great Muzic [sic] to support a sufficiently wide release, then the resulting music pool would be so small as to pose a much greater risk to their business than downloading…
…oh, wait… status quo. My bad.
You want fries with that, baby?
The last time I checked, popularity does not equal quality. Look at the top selling albums of all time – if you think the Eagles are the pinacle of modern rock n’ roll, well, you get what you deserve…
I’m not even interested in “earning big money” from my music. I have very eclectic taste, and most of my favorite artists are underground and you have probably never heard of them. I’m not making music to appeal to a mass audience and I have no interest in doing so. But the current state of affairs means that artists like myself soon won’t even be able to make back ANY of the investment they make in recording their music. And I don’t go for any Pink Floyd-style excesses in the studio, either. Don’t tell me “the cost of recording has dropped so much that now anybody can record anything for nothing.” Not true. Even a bottom of the line home studio will run you several thousand dollars, the cost of which you now can’t recoup by selling cds.
‘The society as a whole would win in both cases. Natural selection, baby.”
Only if you think that society is better served by musicians not only not making a living, but not recieving ANYTHING for their work. Who knows in the long term, but if things continue as they are for the next decade the only people who will be able to afford to record decently and tour, if they aren’t superstars already, are rich assholes with trustfunds. Everybody knows that spoiled rich kids make the best music!
Re: Re:
I should also point out that “Spoiled Rich Kids” would make a fairly righteous band name.
Re: broke musician
Hello
What is your music and where can I sample and/or buy it? I may buy it if it’s good
Re: then sell mp3's man!
“Only if you think that society is better served by musicians not only not making a living, but not recieving ANYTHING for their work.”
its not the fault of willing to pay society that they CAN NOT buy the product they want. If you complain that people share DRM free mp3’s of your work without paying you for them maybe you should talk to guys like amiestreet.com. they help you to make money from mp3’s that organised music refuse to sell to society!
“Regardless, I should point out that if the music industry focuses only on musicians that produce what enough people consider Great Muzic [sic] to support a sufficiently wide release, then the resulting music pool would be so small as to pose a much greater risk to their business than downloading…”
Very true. Remember how I said that I too hated the RIAA and major labels?
Point I was trying to make is that p2p file sharing does indeed hurt smaller labels and underground artists as well, and has unforseen consequences. Everybody is so caught up in watching corporate music collapse (yay!) they lose sight of this (wha?).
And I keep hearing the same “solutions” thrown about, like “bands will make more money on tour and that will make up for it”. When in reality, you’re just taking away cash from cd sales (that bands sell on tour) and not adding anything else. And smaller bands already go broke/lose money on tour as it is. Now, they stand to make even less.
2 words for the RIAA
Applesauce Bitches!!
Let me state my main point more concisely, because people keep getting sidetracked:
MOST bands make little money, or lose money, on tour.
Whatever may happen in the future regarding new technologies, bands will probably continue to make little or no money on tour. If anything, as gasoline prices rise it’s going to get even harder, and bands will make even less on tour. And as people buy fewer cds, that’s one less thing for bands to sell to generate revenue while on tour.
Therefore, whatever you may reccomend for musicians to do in order to adapt to the changing music environment, please STOP saying that they will make up for the lost revenue from album sales with increased revenue on tour from t-shirt sales and other merchandise. Because it’s not going to happen.
Any OTHER ideas you want to throw out, I’d be glad to hear them. I’m not saying p2p is going anywhere, or that major labels aren’t evil, or anything like that. Just that saying bands will make up the lost revenue from album sales from touring is NOT a realistic proposition. So quit saying it is, already.
That is all.
You may be broke because...
..now, I’ve never heard your music, but seeing your business model, I can understand *why* you’re broke.
As an avid music fan with a wide taste in music, I can tell you I’m not going to buy your CD unless I hear your music first.
So, I propose to you that p2p sharing hurts musicians who do not want a larger fan base than the one they already have. If you’re not being played on the radio (and, really, you don’t want that.) and you’re not giving your music to me– then I, sadly, will probably never hear your work.
However, on the flip side, if you give it away freely, and I hear of it, I will check your music out, just because you are one of the enlightened few musicians who have realized that music is not your product– you are entertainers. Music is your *advertisement*. You don’t need to tour the country, you can just play local places– if you are good, I will come see you, and I have never seen a live band that I liked and *not* purchased their CD after the show.
So, since you aren’t ‘touring’, then yes, p2p file sharing will indeed hit you in the pocket– at first. Then as more and more people hear your work, you will grow to a fan base that is large enough for you to ‘bother’ touring.
That, or you just suck and need a new profession. 😛
(I kid, I kid..)
Well, if you’re friend was able to play your wedding, even in a non-traditional-wedding-singer capacity, than his sound has still got to be a bit more mainstream than most. Not that that’s bad, it’s just a different kind of animal. I think it’s safe to say my stuff doesn’t sound like that and I wouldn’t be playing any weddings. Before you jump all over me with “Well, you just need to be more audience friendly!” I think you’d agree there’s plenty of great bands that you wouldn’t necessarily want playing your wedding.
“And since they are spread out, in pre-internet times, I doubt those two fans in Seattle would ever have found out there was a cool (local) band in Georgia (for example), so if of those 500, in the old days, you had 50, I’m thinking that’s not an underestimation, and even if it is, I’m assuming the 500 domestic is an overestimation, so I’m confident the two will cancel each other out for the most part…”
Ah, you’re forgetting one thing that changes this – in olden times, music came out on labels. Not the huge evil major labels but little ones run by one dude who liked a certain sound and would invest his own dough and soul into putting it out. Others who also liked this sound knew to check out whatever records he put out. A band in, say, Georgia, that nobody ever heard of, could send him a demo and he might put it out just because he believed in the music. Naive, you would say, but trust me it actually happened. Or, used to. Then those guys in Seattle who like the same sound knew to check out whatever came out on that label and would give it a listen. This actually happened, pre-internet, and it’s how my first record got released.
When you’re dealing with a niche market, there may only be a small number of people who are going to be into it, period. Mass acceptance isn’t an option. I’ve never “made a living” from music, but at least it used to make me SOME money, enough to re-invest and keep going. And record another album.
Re: Re:
well, the guy isn’t as mainstream as you’d think, it was a small wedding about 45-50 people, so less tastes to appease to. (it was my wife’s second, she had done the big wedding thing the first time around, so this time she/we went for what would be a fun wedding for us and hopefully the guests, but if guests like it less, too bad, it’s not their day, it’s ours).
Anyway, that’s more of a sidebar than what I want to respond to. The point I was trying to make is this:
of the 500 US-fans you have now, in the olden days, it would have been less, because far from all of them would have been into the music scene enough to know about all those (meant with absolutely no disrespect) “obscure” labels (as in the not big, “evil” labels).
The point I was trying to make, and still believe, is: before the internet, (practically) nobody would have appropriated (or rather would have been able to, if we don’t take into account tapes) your music without paying for it. But, before the internet, your fan base would have been substantially smaller as well, and that both effects would cancel each other for the most part. In your case, you went from making some money, enough to re-invest and keep going to not making any, the next guy no doubt went from not making any to making enough to keep going…
or more general: comparing the before and after introduction of the internet(-effects), for some people the shift was as it was for you, for others in the other direction, but in general, the effect is “minimal”….I think there are very few, if any, musicians that went from making a lot of money (or even making a decent living) to starving because they don’t make a penny anymore
Re: Making money in the music biz
I can’t change the world or the RIAA or anyone else. I can only tell you what I do as a music customer, and what a couple of money-earning musicians I know do to stay afloat:
1) As music listeners, my wife and I go to a reasonable number of live performances in and around Sarasota, Florida. If we like the performers, we buy CDs from them.
2) If those performers have email notification lists, we sign up to find out when/where they’ll next be playing in our area so we can go see/hear them again.
3) If any of those performers had websites that offered, say, one freely downloadable song — maybe more than one for people on their email list — as a sample of their latest work, we’d routinely buy downloadable albums from them. But none of the local/regional performers we’ve encountered do this.
4) We no longer buy, download or otherwise obtain music from RIAA-member vendors. This way we don’t have any of their stuff on our computers or as physical CDs on our shelve. If we don’t have any of “their” music in any form, they can’t sue us for listening to it. Well…. they can’t sue us and *win*, anyway.
On the musicians’ side:
1) Be professional in your marketing. Get email addresses at every performance. Have a nice-looking website with lots of info about you/your group. Make sure you tell fans where and when you’ll be performing. If you’re sharing the bill with other performers, do joint email promos so that your fans can learn about them, and vice versa.
2) Your website *must* have some music your fans can listen to online. You’ve got to give them samples of your work — not 10-second fragments, but complete tunes — to get them to either come hear you live or buy your music in CD or downloadable form.
3) Get some professional-quality performance videos made and post them on major video-sharing sites, with embeds in your own site. I do 3 – 5 minute Internet videos for “straight” businesses all the time for around $400 a pop, and usually give a nice discount to artists and musicians. You can probably find someone like me wherever you are. If you’re near Sarasota or Tampa, Florida, you should call *me*, of course. 🙂
4) Use your videos to help you get better gigs. I did an audition video set for a comedienne who has hesitated to post them on the Internet (she wants me to make new ones specifically for her website now), but sends the videos to club bookers and/or managers on DVD. Those videos, *which include lots of crowd reaction shots showing people laughing, applauding, and sucking down booze* get her better gigs then she’d get otherwise.
Note the “sucking down booze” part. That’s what appeals to nightclub owners. They don’t necessarily give a rats ass about you or your music or comedy, but if you show them you can bring in a crowd that buys drinks, they love you. 🙂
For email list maintenance I strongly recommend a free (GPL) program called pommo — http://pommo.org — that a friend of mine wrote specifically for his brother’s band, which faces the same problems you do.
For your site, I would advise using something like WordPress or Drupal as a content management system, and for you to post new content (bio data, video, audio, fan blurbs, whatever) at least a few times every week so that people keep coming back to check out your latest posts — and to buy your latest whatever and learn about your next performance. Constantly-refreshed content also gives you more search engine play, which also helps.
The Internet offers both good and bad for a small-time musician. The trick is to exploit the good as hard as you can, so that the benefits it gives you FAR outweigh any harm done to you by unauthorized file sharing.
Good luck!
Robin ‘Roblimo’ Miller
Bradenton, Florida
I for one don’t buy the “song as an advertisement for the live show” because there are plenty of musicians who have recorded great stuff who were less than electrifying performers. That doesn’t mean their recorded work is less vaild. Also some “studio creations” you couldn’t duplicate live, like that crazy dude Phil Spectors songs or Brian Wilson/Pet Sounds era Beach Boys.