Music Festival Producer Pre-Sues Bootleggers

from the minority-report dept

Ah, pre-crime. THREsq has a worrisome story of a couple of recent lawsuits by concert producers pre-suing potential bootleggers claiming trademark infringement. Yes, they’re claiming trademark infringement for something that hasn’t happened yet, and simply listing out hundreds of John Doe and Jane Does who can later be filled in. As a part of this, they’re getting law enforcement involved by using the lawsuit to ask the court to order US Marshalls, local and state police and even off-duty officers to go ahead and seize and impound the bootlegged material.

It’s really quite something to read the lawsuit which refers to possible events happening in the future:

The article notes that it seems unlikely that any defendants will show up in court to defend themselves or to protest the lawsuit, since they haven’t done anything yet. So, basically, the lawsuit is allowed because there’s no one to contest it, because who’s going to contest such a lawsuit? THREsq reasonably points out how troubling this trend is:

The threat of bootleggers is real, of course, but it’s based purely on speculation, without evidence of the kind of past specific misconduct that might trigger temporary remedies as seen in criminal proceedings. That seems odd, and perhaps a slippery slope. Why can’t any company in America file John Doe trademark action and get police to seize goods they believe will be infringing? What stops this beyond the concert venue?

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Comments on “Music Festival Producer Pre-Sues Bootleggers”

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73 Comments
dscully21 says:

Re: Re: Wait. What?

A plaintiff would not argue standing, why would he? Standing is always a challenge to plaintiff’s case, so not sure where you are going with that. The question is can the court raise standing and dismiss the suit sue sponte? Of course, if they could demonstrate an immediate, irreperable harm, then they would have standing for equitable relief. But, they do have an adequate remedy at law, a case for money damages against the people who do reproduce their “product” illegally, so they should not be given an injunction either. I agree with the guy who says the lawyer should be sanctioned though, for even filing the suit.

Scote (profile) says:

Sanctions?

Seems to me that filling a suit for relief from a violation that hasn’t happened, and without specific information indicating that specific individuals plan on committing a violation should merit sanctions against the plantiff’s lawyer.

But I’m sure there are some DA’s who would like to get in on this pre-crime thing and have some Grand Juries pre-indite John Does for a raft of crimes that the DA expects will happen. It is sooo much more efficient than charging actual people for things they are alleged to have actually done. And with that kind of efficiency, I’m sure the trains will all run on time, too.

Damian Byrne (profile) says:

20. Plaintiff has no adequate remedy at law and will suffer irreperable harm and damage as a result in an amount presently incalculable.

If the law allows no rememdy, why is this lawsuit allowed? They even admit it in their document! Its incalulable because it hasn’t happened yet!

I’m going to file a lawsuit against the guy down the road, because I expect him to rob my house and use his car as a getaway vehicle. Therefore I get his car.

N1KN4K says:

Re: Re:

When it says that the plaintiff has no remedy at law, that is not to say that there is no remedy available, it just the use of legal terms.

In law there are two types of remedy: (1)at law, which usually refers to money damages, and (2) at equity which usually tries to force someone to do something, prevents someone from doing something, or seeks something else that is not quantifiable in money damages. That is the case here.

They are simply saying “we cannot put a price tag on the damages so we are suing at equity asking that you seize any material that fits the description of this suit.

Comboman (profile) says:

Someone should contest it

The article notes that it seems unlikely that any defendants will show up in court to defend themselves or to protest the lawsuit, since they haven’t done anything yet. So, basically, the lawsuit is allowed because there’s no one to contest it, because who’s going to contest such a lawsuit?

Can someone go to court and claim to represent John & Jane Doe or XYZ Company? You could point out that your clients have done nothing wrong and the plaintiff is wasting the court’s valuable time and demand that the case be dismissed (and of course, that they pay for your legal fee).

Dark Helmet (profile) says:

Re: Re:

The question is if you didn’t sue yourself tomorrow for possibly making yourself go bankrupt, would you ever eventually go bankrupt in the first place? If the answer is no, then it only seems fair for your future self to sue your present self for maliciously causing said bankruptcy in the first place, thereby causing you to be bunkrupt now and unable to fund the lawsuit to begin with….wait….yup, I just shit myself….

C.T. says:

This is very common...and has been for a decades

John Doe trademark suits have been been around for many years. The purpose of the suit is to enable the TM owner to seize the goods of a person who is selling infringing product. The lawsuit is essentially an attempt to get a court to issue a seizure order in advance of a one-time event. Most large touring acts file these sorts of suits in advance of each of their concerts (in each city that is on the tour).

Surprised that the “Hollywood Reporter” would regard this as news.

senshikaze (profile) says:

Re: This is very common...and has been for a decades

So as long as it is done a whole bunch of people for a long time, then it should be okay and legal?

We, looky here. Murder has been committed for as long as we have been able to keep history, as well as rape. Obviously, since it has been done for a very long time by a lot of people, then both these should be legal, right?

No? well, foot, meet mouth. I am sure you will get along smashingly.

FormerAC (profile) says:

Phil Jackson tactics?

The coach of the Lakers is notorious for his pre-series calling out of the officials. Before a big series, he will frequently complain about the tactics of the other team, and usually a specific player. When the games are actually played, his pre-complaining usually pays off.

Sad to see corporate lawyers abusing our legal system in the same fashion. In this case, you know that the event organizers, with the help of local LEOs, will bust someone selling crappy $5 t-shirts. Maybe they should just sell some crappy $5 shirts instead. There is obviously a market for them.

Anonymous Coward says:

Can I counter-pre-sue them for the unlawful search and seizure and beating by police officers that I will receive when I go to the Musical festival? This police brutality will be caused(in part) as a direct result of this case? As evidence, I’d like to submit this 1 blank DVD (which I will burn with the video that will be taken of the beating by a bystander), a blank SD card which will have on it pictures of me before and after the beating, and 25 blank pages which will contain eyewitness accounts of the savage beating I will receive.

Justin Mason (profile) says:

Yes, officer, I'll be guilty of that pre-crime, but it's okay, I've also been pre-convicted, and pre-pardoned...

I want to pre-sue my distant future self… the ridiculously rich and famous one. I could really use the money now, and I won’t miss it later on. Hey, maybe the reason I have so much money in the future is because I filed suit against myself today. Makes sense to me… /s

While this type of thing may not be uncommon, it’s a fantastic example of how absurd our copyright/trademark laws and practices are.

Steve says:

Preemptive injunction against this concert

What’s to prevent anyone from filing a request for an injunction prohibiting this concert from being held on the grounds that the organizers may infringe upon a copyright they hold at the event? Everyone has copyright over their own works, after all. If you filed it Thursday or Friday, you might be able to get an injunction (using their own arguments against them — if they can file suit against someone for a future action, why can’t I?) without giving the organizers time to respond until it’s too late.

Anonymous Coward says:

As a part of this, they’re getting law enforcement involved by using the lawsuit to ask the court to order US Marshalls, local and state police and even off-duty officers to go ahead and seize and impound the bootlegged material.

Ummmmmmm…..Seize and impound what exactly? It doesn’t exist yet! Perhaps the crims can get off with time served – you know, the time their future selves have already done.

Listen Chaps says:

Incoming Reality Check, Look Out Below!!!

The way this happens in real life is that at EVERY venue larger than a dive bar, you have people hocking infringing gear. Some infringers get caught. Most don’t. The ones that do get caught NEVER show up in court. These pre-suits are par for the course. The only real remedy that the rights holders typically get from these are seizing (and destroying) the fake gear on the spot. They do it with feds so that people can’t claim abuses by private parties. If we’re going to have trademark law, but then make enforcement impossible, we might as well not run this facade that we actually have trademark law. And it’s one thing to argue non-commercial infringement, but these guys are selling gear, hocking it under someone else’s brand. That’s not kosher.

If you actually worked in the industry (Mike has never had an industry job), you’d know this happens at every venue larger than a dive bar, and how much of an issue it is.

Mike’s lack of logic is even funnier in this particular instance, because Mike is all about selling tangibles, and here these guys are protecting their right to sell tangibles, but Masnick’s gone apeshit again. Typical tabloid writer. Yes, I fed the troll. I’m out.

Anonymous Coward says:

Re: Re: Incoming Reality Check, Look Out Below!!!

Wait… how is this a due process violation?
1) law says you can prevent people from selling with your brand
2) brand owner files before a court saying “i’m going to enforce the law at my venue”
3) government attends enforcement to verify that brand owner’s actions conform to law

Under your laughable interpretation, you’re looking at:
1) law says you can prevent people from selling with your brand
2) brand owner invests a ton of money into brand
3) someone else uses brand (unlawfully)
4) brand owner has to sit there and watch others infringe at a venue
5) brand owner files suit
6) infringer doesn’t show up in court and has no attachable assets
7) law exists, but is unenforceable

Where’s the due process in that? Do you even know what due process is?

nasch (profile) says:

Re: Re: Re: Incoming Reality Check, Look Out Below!!!

Wait… how is this a due process violation?

Here’s how.

1) law says you can prevent people from selling with your brand
2) brand owner files before a court saying “i’m going to enforce the law at my venue”
3) government attends enforcement to verify that brand owner’s actions conform to law
4) Law enforecement officers confiscate property at the behest of a private third party, without the property, its owner, or any related activity being examined by a judge.

Did you spot it? If the lawsuit is filed before the allegedly infringing activity takes place, then any warrant or order issued beforehand cannot possibly take the facts of the case into account. Property is being confiscated by the government at the say-so of a private individual or corporation. If that isn’t the absence of due process, I don’t know what is.

Richard Corsale (profile) says:

Re: Incoming Reality Check, Look Out Below!!!

That sounds like a lot of work for such a pittance. You would think, that they would just purchase a law that entitled them to confiscate commercial infringement goods. Why do you think they have to go through this for every show?

BTW, It doesn’t matter that it’s common. It’s sorta sleazy, wouldn’t you say?

Mike Masnick (profile) says:

Re: Incoming Reality Check, Look Out Below!!!

The way this happens in real life is that at EVERY venue larger than a dive bar, you have people hocking infringing gear. Some infringers get caught. Most don’t. The ones that do get caught NEVER show up in court.

That’s no excuse for removing due process.

The only real remedy that the rights holders typically get from these are seizing (and destroying) the fake gear on the spot.

How is that a remedy? And how is that reasonable when the holder of the seized goods has no legal recourse? There’s simply no due process at all.

If we’re going to have trademark law, but then make enforcement impossible, we might as well not run this facade that we actually have trademark law.

There are perfectly legitimate ways to enforce trademark law that include due process.

And it’s one thing to argue non-commercial infringement, but these guys are selling gear, hocking it under someone else’s brand. That’s not kosher.

Then sue them after they violate the law.

Mike’s lack of logic is even funnier in this particular instance, because Mike is all about selling tangibles

Huh. That’s news to me. I’m actually not about selling tangibles. I tend to think that’s not a very good business model in many cases.

You seem to be confusing scarcities with tangibles. Odd, but for someone who’s going to attack me for supposedly not knowing what he’s talking about, it helps to not get wrong what you think I’m about.

Anonymous Coward says:

Re: Re: Incoming Reality Check, Look Out Below!!!

There’s complete due process. The private party says to the court “Look, people are going to be hocking fakes at my venue. Can you send some people out to make sure my rights are not violated?” The feds then come out. Now, the feds can only take fake gear. They can’t take just anything. That’s the whole point. There’s no due process violation.

As for the holder of the seized goods claiming their due process was violated, the only gear that’s been seized is the fakes. No one in the history of concerts has even remotely alleged they were selling legit gear and it was seized. No one. The armchair activists on this blog are literally the only people who are complaining. The people who doing the infringing know it’s against the law. That’s why they don’t show up after the fact.

nasch (profile) says:

Re: Re: Re: Incoming Reality Check, Look Out Below!!!

You may not understand what due process is. It doesn’t mean that the government can only do something if it’s correct about the facts, it means that certain “processes” need to be followed before abridging someone’s rights. For example, it wouldn’t be ok to imprison and sentence a murderer without a trial, even if he really did commit the crime.

Anonymous Coward says:

Re: Re: Re:2 Incoming Reality Check, Look Out Below!!!

I completely understand due process. You act like the guys hocking fakes are not doing something wrong, and we should assume they’re legit, even when caught red handed. This is not like downloading where there’s a possibility you didn’t do it… the rights holders give out certificates of authority / permits / licenses to the legit sellers. The cops ask all sellers for their permit/license, and the bullshitters clearly don’t have one, so the goods get seized. This is so black and white that even the bootleggers aren’t contesting this. It’s literally only the Masnick “I don’t understand IP, so no one should be allowed to have any” crowd who acts like there’s a legitimate debate here.

nasch (profile) says:

Re: Re: Re:3 Incoming Reality Check, Look Out Below!!!

The cops ask all sellers for their permit/license, and the bullshitters clearly don’t have one, so the goods get seized.

If this is really the case, then 1) it seems like they’re getting busted for not having a permit, not for selling counterfeit goods and 2) why is a lawsuit necessary? Couldn’t they just contact the police department and ask them to please come enforce permitting laws at the venue?

UnknownKnown says:

Double Jeopardy?

If someone successfully contests this lawsuit and people end up selling “unauthorized merchandise”, doesn’t the constitutional guarantee against twice being put in jeopardy (“double jeopardy”) prevent the plaintiff from re-doing the suit after the concert?

I don’t know much about law but if I’m correct, they’re screwing themselves over before the crimes even occur, leaving them no way to collect damages.

charliebrown (profile) says:

"XYZ" is a real company

XYZ is listed as the company being sued in the lawsuit. XYZ is a REAL company in Australia, jointly owned by pay TV providers Foxtel and Austar and runs (among other channels) the music channels “Channel [V]” and “max” (aka “MusicMax”) – does this mean they will illegally broadcast the concert on [V]?

http://en.wikipedia.org/wiki/XYZnetworks

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