Sony's Own Copyright Infringement Shows How Broken Our Copyright System Is Today

from the because-of-course dept

It almost always seems to come out that the most aggressive “anti-piracy” people, companies and organizations are engaged in some form of copyright infringement themselves. There was Nicolas Sarkozy, former President of France who initiated the idea of a “three copyright strikes and you lose access to the internet” program, but who also apparently was mass pirating DVDs. Even the MPAA — an organization whose entire reputation is basically wrapped up in its anti-piracy efforts — has a history of infringing on others’ copyrights when it’s convenient. The latest example is Sony Pictures.

As we’ve been covering, Sony was among those involved in the MPAA’s plot to attack Google by paying for state Attorneys General investigations into Google, a company that the MPAA still thinks isn’t doing “enough” to stop piracy online. Yet, now it comes out that in The Interview — a movie whose plotline has become intertwined with the Sony Hack — Sony used some music that it did not license. The musicians in question are now threatening to sue:

Tiger JK and Yoon Mi-rae (a.k.a. Tasha Reid)’s agency FeelGhoodMusic said Friday in a press release that the two’s duet piece, “Pay Day,” is featured in the Seth Rogen/James Franco comedy, but a contract was never signed. About 10 to 15 seconds of the song appears in the film.

“There were initial discussions about including the song in the film score, but negotiations stopped so we were under the impression that it wasn’t happening,” said the press release. “It was only after the film was released that we became aware of the song’s unauthorized use, without taking the appropriate and necessary steps to complete a contract with the artists.”

The label also noted that the musicians were hesitant to license the music for this movie at all, given that “the film is a very sensitive topic in Korea.” Oh really? I hadn’t noticed.

Of course the likelihood of this ever getting to court is basically nil. Sony will pay up to make it go away quietly without a trial. And, as Sarah Jeong helpfully points out, Sony has insurance to pay for these kinds of mistakes.

The larger point here isn’t even that Sony is a hypocritical assholish company when it comes to copyright (on both sides of the question). Rather, it’s that the entire copyright system is broken, and this little incident demonstrates that once again in multiple ways:

First, if Sony were to get sued, it would face the exact same penalties as someone sitting at home who downloaded or shared an unauthorized copy of the same exact song. It’s difficult to see how that’s even close to reasonable, but that’s the way copyright law is structured today, with no real way to distinguish between a blatant commercial abuse for use in a high profile movie, and totally non-commercial use by a fan. Either way, you’re facing $750 to $150,000 in statutory damages (the cap is $30,000 if the infringement isn’t “willful” — but copyright holders will claim that the file sharer at home is willful infringement).

Second, it shows that everyone infringes all the time. Whether meaning to or not, it’s actually fairly difficult to avoid infringing on copyrights. That’s not to say that accidental copyright infringement is what’s happening with file sharers or with Sony’s use of the music here, but under the law, it’s pretty much all the same. The fact that, as noted above, some of the biggest copyright system defenders are found out to infringe should highlight this issue pretty clearly. Even when you are a strong believer in copyright, there are going to be some situations in which you screw up and break the law. Given how frequently this happens, it certainly seems like the problem is with the law rather than all the people.

In the end, this story will quickly go away, because Sony will fork over some cash and everyone will forget this ever happened. But for someone at home who just wants to check out a movie, these kinds of threats and lawsuits can absolutely destroy them. And Sony doesn’t care one bit about that.

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Companies: feelghoodmusic, sony

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Comments on “Sony's Own Copyright Infringement Shows How Broken Our Copyright System Is Today”

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64 Comments
antidirt (profile) says:

Wow, Mike. Your tinfoil hat is on extra-tight today. Sony might have failed to properly license a clip, and that means “the entire copyright system is broken”? LMAO. And it “shows that everyone infringes all the time”? ROFLMAO. I can’t believe you still link back to that post on Tehranian’s ridiculous claims. In that post, you said: “Replying to an email with quoted text? Infringement!” Do you really believe that, Mike? Of course you don’t. But you repeat it over and over again. Why? Because you’re not an honest person. Seriously, Mike. If you don’t believe that’s true, why do you keep saying it?

Gwiz (profile) says:

Re: Re:

Replying to an email with quoted text? Infringement!” Do you really believe that, Mike?

Isn’t that the letter of the law, though?

My email is copyrighted the moment it’s fixed to a tangible medium, right? If someone replies with my text quoted then they have committed copyright infringement. You not believing it doesn’t change the facts there, AJ.

Do you care to explain why you think it’s NOT infringement?

Anonymous Coward says:

Re: Re: Re:

Do you care to explain why you think it’s NOT infringement?

Because if it is, all communications between people using a persistent medium are illegal.
If it is illegal the laws of unintended consequences has bitten hard, as nobody can use messages on a permanent medium to hold a conversation.

Ninja (profile) says:

Re: Re:

Sony might have failed to properly license a clip, and that means “the entire copyright system is broken”?

If it was a rare event then you’d have a point but it happens everyday on a massive scale. Not only this but copyrights for a 10 second snippet is ridiculous. So where is the line drawn? Below 2 seconds is not infringement anymore? What if the main character whistles 3 or 4 notes? And let’s emphasize yet again that the single mom that had her kids download a handful of songs for personal use face LESS fines than Sony for these 15 seconds even though it’s clearly massively commercial. The system is utterly broken. And I’m not advocating for the legalization of downloads for personal use yet!

Replying to an email with quoted text? Infringement!

It may be depending on the nature of the e-mail and the court. And that’s precisely one of the many broken points in the current system.

Do you really believe that, Mike? Of course you don’t.

Talking to the pseudo-straw-mike you built in your head?

DOlz (profile) says:

Re: Re:

“Sony might have failed to properly license a clip, and that means “the entire copyright system is broken”?”

Let’s try an anology to see if it helps you. Your city has a law about barking dogs being a nuisance (copyright law). Your dog sometimes barks in the afternoon (accidental or personal infringement). Your next door neighbor (Sony) who is connected in the city government complains. You’re told you have to pay a $100 fine for every time your dog barked and if happens again your dog will be put down. While your neighbor is complaining about your behavior, he lets his dog out every night to do its business and it barks up a storm every time. When you complain your Sony, ahem neighbor is told to pay a $10 dollar fine and to not do it again. They tearfully promise this EVERY time they do it and they never face the consequences they demand of everyone else.

On a side note before this whole brouhaha about the “Interview” came about I hadn’t planned to see it. I still won’t see it because if I do the terrorists and Sony will win.

Anonymous Coward says:

Not paying to see the Interview

So the Interview was available online for $6 on Youtube to rent. I was able to watch it on my AppleTV since Apple recently added that functionality to the Youtube app (although I had to purchase it through the Youtube website first). And yet, a lot of people still chose to download it through torrents or whatever. Now, some of these people couldn’t get it through youtube because of their location, but there were still a lot who could but chose not to.

And yet, there were probably also a lot of people who sat down and watched the legally streaming version that a friend or family member purchased. Now, what’s the difference between that person and someone who just downloaded it for free? Neither secures a dime for Sony. If you have a choice between a person not watching your movie and watching it for free shouldn’t the answer be watching it for free?

But I still think the media companies would rather you not see it. Because they think if something is available for free then no one will pay for it. And that says a lot for what they think about the consumers of their products.

Anonymous Coward says:

Re: Not paying to see the Interview

And yet, a lot of people still chose to download it through torrents or whatever.

To be fair, in this case I think it’s less that people chose regardless to illegally download because of not wanting to pay ever, and moreso they illegally downloaded it as a giant “fuck you!” to Sony.

Personally, I can’t find fault in either, because fuck Sony.

David says:

Wrong deduction

First, if Sony were to get sued, it would face the exact same penalties as someone sitting at home who downloaded or shared an unauthorized copy of the same exact song. It’s difficult to see how that’s even close to reasonable, but that’s the way copyright law is structured today, with no real way to distinguish between a blatant commercial abuse for use in a high profile movie, from totally non-commercial use by a fan.

That’s the penalty per infringement. And infringement would obviously be at the very least per screening but more likely per viewer.

Sony will settle this one for a ridiculous amount of money in order to avoid being in court for an even more ridiculous amount of money.

cpt kangarooski says:

Re: Wrong deduction

That’s the penalty per infringement. And infringement would obviously be at the very least per screening but more likely per viewer.

Not necessarily. Actual damages plus profits are per infringement. Statutory damages are per work infringed, regardless of the number of infringements of the copyright of any work in question. Take a look at 17 USC 504 for the relevant language.

Mike did reference the statutory damages in particular. And for this song and this movie, I doubt that actual damages plus profits would amount to very much anyway. While it’s technically per infringement, the measure of the damages would be based on how much it would’ve cost to license it, not on how many screenings or viewers there were. And good luck finding profits for this film, particularly since Sony would reduce the pool of potential profits by showing what’s not attributable to the infringement.

Anyway, people often make the mistake of thinking that statutory damages are per infringement rather than per work. I think that this caused the damage award in Sony v. Tenenbaum to be larger than the jury would’ve actually intended — Sony claimed that the award was per infringement when the jury instructions were being written, and the defense missed it, so didn’t object. So I guess it would be ironic if they got hit by that now, not that they, or anyone, should.

That Anonymous Coward (profile) says:

Re: Re: Wrong deduction

Which is why copyright trolls always want a settlement, and not a judgement. The amount of settlements for many of these films is often well in excess of $150K, if they got judgements instead of settlement they would have to inform the court of how much they were already paid to be made whole.

That One Guy (profile) says:

Re: Re: Re: Wrong deduction

Well that and a judgement would require them to present their ‘evidence of infringement’ in court, where it could be challenged, something that could lead to more than a few ‘speed bumps’ to the money train.

In fact, that, more than the money angle, is probably why they prefer settlements over judgement. If someone refuses to settle, then they can just move on and try another sucker, of which there are countless numbers, but if they get a judgement against them in court, that’s a lot harder to ignore and move past.

antidirt says:

Re: Re: Re:4 Wrong deduction

You are a known troll who has proven time and time again that you are not interested in discussion and do not deserve answers.

LOL! He does NOT really believe that replying to an email with quotes is infringement. He’s so dishonest that he keeps saying it anyway. Keep making excuses for him. I’m sure he appreciates it.

MrTroy (profile) says:

Re: Re: Re:5 Wrong deduction

Why the heck do you even care that much about Mike’s opinion on a specific point that’s only tangentially related to the article you’re commenting on?

Don’t you realise that it’s perfectly valid to argue a point from somebody else’s opinion in order to demonstrate some aspect of that opinion? What Mike thinks about it is, quite frankly, irrelevant. The whole point is that anyone thinks it, and even a fair use argument couldn’t keep you out of court to defend against a claim against you.

antidirt (profile) says:

Re: Re: Re:4 Wrong deduction

You are a known troll who has proven time and time again that you are not interested in discussion and do not deserve answers.

LOL! He does NOT really believe that replying to an email with quotes is infringement. He’s so dishonest that he keeps saying it anyway. Keep making excuses for him. I’m sure he appreciates it.

That Anonymous Coward (profile) says:

Someone infringes copyright and makes $25 million, and it is just a booboo.
Someone else infringes copyright makes nothing, and is left on the hook for $150,000.
(working with the assumption that corporations are people)

Perhaps it is time to separate commercial from noncommercial infringement.

At least while this movie was burning up the filesharing outlets, they still managed to make a shitload of money for what is allegedly a shitty film. I wonder if one of the small reptilian brains in control of the industry had a small stroke that the sky is falling claims just didn’t hold water in reality.

Anonymous Coward says:

Re: Re:

Just more proof that the law is written for the rich to get richer while the poor will stay poor.

It costs less for some companies to dump toxic chemicals and pay a fine than it does to properly dispose of things.

Same for here… it costs less in some cases for big studios to risk a lawsuit than to pay the license fees.

There is only one way to end these types of corruption.
The government should not be allowed to monetarily penalize anyone or any business for any-reason. If a person/business breaks the law, then person(s) responsible should see jail-time. No fines or fees, this just breeds corruption.

That One Guy (profile) says:

Re: Re: Re:

Slight modification:

Individuals should only face fines and fees for minor stuff like copyright infringement(or really any non-violent crime). It works as an effective punishment, without claiming the most valuable resource they can offer, that being their freedom.

Companies, and those that work for them, should only face jail time. To a company, paying a few thousand, or even million, isn’t any sort of punishment at all, so it completely fails as a form of punishment. However, having the CEO and/or other execs spending time in jail, that is something that they’ll pay attention to, so jail time would be an effective punishment and deterrent, where fines and fees are not.

Anonymous Coward says:

I guess at least this is not as embarrassing as when Sony stole the song False Flags, which was an anti-corportism/anti-sony Sony, and used it as the theme for a series of Vita commercials.

Of course that artist never got his rightfully due paycheck because Sony has a massive lobbying arm and an army of lawyers to protect them.

Copyright law is bullshit when it only protects corporate interests and not the everyman.

That One Guy (profile) says:

Re: Re: Re:

On an individual basis, no, it doesn’t do much(other than save you money and provide that warm feeling you get from not giving money to a company that holds nothing but contempt for you), but if enough people do it, they might notice.

The fact that ‘enough’ will probably never be reached, due to the overwhelming number of morons who don’t care how a company sees and treats them, as long as they can have the ‘newest’ and ‘shiniest’ toy, does not remove the individual perks you get from refusing to purchase from a given company.

As such, even if that tipping point of ‘enough’ is never reached, it’s still a good idea to boycott companies that hate their customers and anyone who might have been their customers, if for no other reason than knowing that you’re not helping them by giving them money or attention.

Anonymous Coward says:

‘ investigations into Google, a company that the MPAA still thinks isn’t doing “enough” to stop piracy online.’

that’s a strange remark to come out with when the entertainment industries themselves are doing absolutely nothing to even try to reduce the amount of illegal downloading (that cost those industries about 1% of what they say it costs them). even the logging and sending notices out are done by the ISPs! if they were that concerned about it, the industries would at least put a token show up, but they do nothing! they want the downloading stopped but expect every other industry to foot the bill! if they were truly worried, they would put up on the internet their own versions that were on par at least with what can be downloaded, at sensible prices, so as to entice people away from the supposed ‘pirate’ sites! as it is, all the industries do is constantly complain while just as constantly throwing money at the politicians and law makers who, again just as constantly take the money offered!! a vicious circle that wont be broken until a government actually tells the industries ‘enough is enough! sort your own shit out first before you keep conning everyone else!!’

Anonymous Coward says:

I disagree with point one. No additional damage has been done in a case of corporate infringement as opposed to a case of personal infringement. Perhaps motive should change the punitive damages in a suit, but not how big someone’s bank account is. Of course give. Techdirt’s political demographic my comment will largely go unsupported; take from the rich because they’re rich, after all.

That One Guy (profile) says:

Re: Re:

Wait, what?

I have got to be misreading that, are you really arguing that when a company infringes on a copyright for commercial reasons, no harm is done, yet when someone downloads a song/file for personal reasons, there is measurable harm?

Like I said, I have got to be misreading that, so further explanation would be appreciated.

nasch (profile) says:

Re: Re: Re:

I have got to be misreading that, are you really arguing that when a company infringes on a copyright for commercial reasons, no harm is done, yet when someone downloads a song/file for personal reasons, there is measurable harm?

No, he’s saying corporate infringement doesn’t do more damage than personal infringement. Which is still wrong.

Perhaps motive should change the punitive damages in a suit, but not how big someone’s bank account is

It’s not about motive, but about the nature of the infringement. What harm is done by not spending a dollar on a song and downloading it instead, compared to the harm done by not spending whatever the license fee would be (thousands? tens of thousands?) and using the song in a movie? You’re saying it’s the same harm?

That One Guy (profile) says:

Laws are for the little people

And to the surprise of absolutely no-one who’s been paying attention, yet another ‘Strident defender of copyright and the creators it’s meant to serve’, has shown no problem or hesitation infringing on copyright, and screwing over the creator.

And really, why should they, corporations wrote the law, it was never meant to apply to them, so why would they care about following it?

That One Guy (profile) says:

Re: Fair use?

Possible, commercial use doesn’t automatically bar fair use claims, but the fact that they were in negotiations with the artists previously would seriously hurt the chances of that working, as it would make it appear that they simply decided that the terms being offered were too bothersome, and just used the music regardless.

Brian W. says:

This isn't the first time

The word on the street is the mid 2000s, Sony hired a design firm to help build their PS3 controllers. That firm may have been Logitech. Logitech has been using licensed Immersion technologies haptic feedback in their own devices since 2001. It’s possible that the design firm pointed out that haptic feedback would need to be licensed from Immersion separately, but Sony seemed to ignore this advice or whatever. Sony conveniently and happily used the Immersion patented haptic feedback mechanism in the controller. A patent infringement lawsuit commenced. As a result, Sony lost.. But, during the proceedings, Sony inexplicably disabled haptic feedback in all controllers globally through a software update during 2006 and released new controllers without the mechanism entirely during that time. Sony made up some cock and bull story about the haptic feedback interfering with a sensor. But, we all know the real reason.

In 2007, Sony agreed to a large monetary licensing agreement with Immersion and the haptic feedback mechanism was once again reintroduced and controllers could then be purchased with the mechanism inside. Sony ended up paying a whole lot of money ($90+ million + royalties) just to give us a controller with vibration capabilities, which I personally find annoying and never use. If they had just licensed it up front or outright bought Immersion, it would have been far cheaper.

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