Ted Cruz Campaign Infringed On Copyright, But Will Probably Be Treated With Kid Gloves Just Because

from the class-war dept

Fresh off the news that Mike Huckabee finally settled the copyright infringement suit over his use of a Survivor song at his Kim Davis rally, we have now learned that the campaign for Ted Cruz has apparently also had an issue with properly licensing music for its campaign. There's a degree or two of separation here to be aware of, with the Cruz campaign having hired an ad agency to handle its digital advertising, and with that ad agency apparently flouting the licensing rules of the music it acquired with pretty stunning abandon. Still, while accusations of infringement by musicians against politicians so rarely are simple cases of infringement, instead fraught with politics, this one, as Eric Goldman notes, appears to be pretty straightfoward.

Senator Ted Cruz’s presidential campaign allegedly hit the copyright infringement bullseye. (All of the following facts are allegations from the complaint, but the defendants’ motion to dismiss doesn’t challenge any of them). The Cruz campaign’s ad agency, Madison McQueen, downloaded two songs from Audiosocket, which I would categorize as a stock music agency. The songs are “Lens” by Sarah Schachner and “Fear of Complacency” by Brad Couture. In each case, the ad agency agreed to Audiosocket’s standard Small Business License Agreement, which prohibited any use “for political purposes” and included a $25k liquidated damages clause. Audiosocket attached unique IDs to its downloads that fingers the ad agency as the downloader of these songs.

Despite the license restrictions, the campaign used both songs in promotional material. Lens was used in the “Victories” video (apparently offline), viewed 78,000 times on YouTube. After the campaign was told that its use was unauthorized, the campaign nevertheless broadcast the video 86 times on Fox Business News (if criminal copyright infringement were being prosecuted, which it won’t be because the DOJ would never go after a sitting Senator for such things, would this fact provide the necessary willfulness?). Fear of Complacency was used in the “Best to Come” video, viewed 12,000 times on YouTube.

It's typical for these types of complaints to be layered in nuance and interpretation, with a dash of one side or the other misunderstanding how licensing, copyright, and the rights that surround public performances work. This does not appear to be one of those cases, as the agreement Madison McQueen agreed to is fairly straightforward and specifically forbids the exact use for which the music was incorporated. As Goldman notes, whereas most campaigns would simply apologize and pay to have all of this go away, the Cruz campaign instead offered up a motion to dismiss. That motion didn't rebut any of the allegations. Instead, Cruz's lawyers argued that the musicians had only applied for copyright registrations and had yet to have that process completed, that it's unclear how many times it should be said that the campaign infringed on the copyrights for the songs, that Audiosocket can't stack its copyright complaint alongside its breach of contract complaint, and that all of this is a moot point because -- not making this up -- Cruz lost and gave up on his candidacy.

The court, predictably, denied every argument in the campaign's motion to dismiss. Which means it's settlement time.

Now that the plaintiffs survived the motion to dismiss, I’d expect the parties to revisit a settlement. The sticking point may be computing damages, especially the liquidated damages where the parties may disagree about how many times the license was breached. If Audiosocket accepts $25k per song, it should take $50k or less to buy them out–easily doable (especially if he still has $9M cash on hand). Audiosocket says it’s not claiming each of the 90k+ streams count as individual breaches (which would lead to over $2B of liquidated damages), but I’m not sure what their compromise position will be, so it’s hard to guess how far apart they really are.

To me, the most interesting unresolved question is how this lawsuit and failed motion to dismiss will change any of Sen. Cruz’s positions about copyright law. I’m not familiar with his IP platform, but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans who find themselves unwittingly staring down the barrel of a copyright infringement shotgun. Unfortunately, if past politicians’ response to being accused of IP infringement is any guide, the chances of Sen. Cruz becoming a champion of user rights are remote.

The more interesting question to my mind is exactly how all of this would play out if Senator Ted Cruz was instead local mailman Ted Cruz, without the legal team and political cache that he enjoys to back him up? We talk a great deal around here about citizens who are engulfed in questionable copyright actions, yet here is a Senator who will be able to pay some sum of money that he has at his ready to make all of this go away.

You would hope that this would lead to some kind of empathy in the halls of government, but naaaaaaah.






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  • icon
    That One Guy (profile), 18 Jul 2016 @ 1:47pm

    Empathy comes from adversity, not ease

    We talk a great deal around here about citizens who are engulfed in questionable copyright actions, yet here is a Senator who will be able to pay some sum of money that he has at his ready to make all of this go away.

    You would hope that this would lead to some kind of empathy in the halls of government, but naaaaaaah.


    Empathy would require two things, both of them unlikely.

    Since a politician that has to go through something like this has a number of people who can handle it for them, and they themselves are never involved more than at the very edges, they have no idea what it's like to be the one who has to deal with it personally, and as such no idea how stressful and difficult it is. As a result they're likely to have a fairly blase attitude towards it, because hey, it's not like it's a big deal, just tell someone else to handle it for you.

    At the same time most politicians would probably just shrug off twenty-five or fifty thousand as not that big a deal(what's twenty-five grand for someone with millions to work with?), meaning they aren't likely to have the slightest clue how a fine or even potential fine of few grand can seriously screw over the average person.

    Hard to develop a sense of empathy when you don't have to deal with the slightest bit of the hardships people in a similar position would have to go through.

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy2020 (profile), 18 Jul 2016 @ 2:37pm

    I think it's important to note that he's paying *someone else's* money. It will come out of his campaign cash which was donated by other people.

    If this was coming out of his pocket then he might be more invested in the outcome.

    reply to this | link to this | view in chronology ]

  • identicon
    UniKyrn, 18 Jul 2016 @ 2:42pm

    We'll consider obeying the insane laws they get paid to write, when they obey them first?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 18 Jul 2016 @ 2:45pm

    There are good reasons lawmakers get easy treatment

    There is a very good reason lawmakers get treated with kid gloves when they break the law.

    Because lawmakers CANNOT BE EXPECTED to know what the laws are. Therefore they SHOULD get some slack for not knowing the law. How could you expect a lawmaker to know the law?

    Reasons, any combination of:
    [_] Lacks reading skills to have read the law
    [_] Lacks reading comprehension
    [x] Insufficient intelligence to understand the law
    [_] Lacks basic abstract ideas like 'property', 'ownership', 'propriety', etc.
    [x] Too busy doing what is important: raising money from any corporation that will give large amounts of money
    [_] Any of the above
    [_] All of the above

    This is why lawmakers can violate copyright and get no serious penalty. Or treat classified information as though it is a newspaper. (And I'm NOT singling out any one politician here, there are plenty who are guilty of this!)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2016 @ 6:10pm

      Re: There are good reasons lawmakers get easy treatment

      you are stupid to call any political cretin insufficiently intelligent to understand the law. They have more than enough lawyers to help them out.

      Stupid people like YOU help to keep these asses in power.

      They know just exactly what the hell they are doing and they literally BANK their careers on people like you just making fun of them with stupid comments like these and ultimately doing nothing about them.

      Politicians are treated with kid gloves because once they start going after each other FOR REAL they will engender revenge and then all of them will have to start watching their backs. Only those that have fallen out of favor get their asses put in check because no one wants to come to their rescue!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2016 @ 5:01am

        Re: Re: There are good reasons lawmakers get easy treatment

        I see you are back to your world famous victim blaming again.

        It is you who, by your actions, support those assholes you claim to despise. Please explain how your attacking others benefits them. and how your crusade will save the world from certain destruction.

        reply to this | link to this | view in chronology ]

      • icon
        DannyB (profile), 19 Jul 2016 @ 5:43am

        Re: Re: There are good reasons lawmakers get easy treatment

        There are many, many examples I could give of how lawmakers and insufficient intelligence go hand in hand.

        I'll just point out one of the latest examples. "working together" to create magical unicorn encryption that only works for good people but is magically breakable when bad people use it. If nerds would just work harder, it could really happen.

        When they begin a statement like "I may not be an expert at rocket surgery but . . ." and then proceed to make bold statements contradicting what actual experts say. Basically claiming (rightly) to be an idiot, and then demonstrating clearly for all to see. Just as your post does.

        Smoking does not kill people, says our (potentially) next VP.

        reply to this | link to this | view in chronology ]

  • icon
    Steve Zissou (profile), 18 Jul 2016 @ 2:48pm

    Wait... so Audiosocket is the one suing... so will Audiosocket get the money? Or will that go to the actual musicians whose work was infringed?

    reply to this | link to this | view in chronology ]

    • icon
      AC720 (profile), 18 Jul 2016 @ 4:45pm

      Re:

      Audiosocket took on the responsibility to sue and defend the copyright because they were the ones who sold the songs that were misused. The artist, or copyright holder, entrusted them to maintain the copyright for songs licensed via that site. So Audiosocket has to bear the brunt of suing regardless if they keep the money or have to pass it on.

      IANAL and I have not read the suit, but I suspect Audiosocket would get to keep the $25K for breech and most or all of any damages would go to the copyright holder. Which may also be Audiosocket. Looking at the song on the website, it does not actually show who owns it.

      FWIW, the Cruz campaign claim that the copyright had not been filed is laughable. Copyright applies the moment the work is created, whether it is filed or not. Copyright is not like a patent.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Jul 2016 @ 3:23am

        Re: Re:

        FWIW, the Cruz campaign claim that the copyright had not been filed is laughable. Copyright applies the moment the work is created, whether it is filed or not. Copyright is not like a patent.

        Yes and no.

        As I understand it, and I might get some of the details wrong so anyone who knows better feel free to correct me but while copyright does apply as soon as something(in this case a song) is created, there are extra 'perks' to registering, primarily when it comes to calculating 'damages' for infringement.

        If the song has been registered infringement invokes the hefty statutory damages, but if it hasn't then damages are limited to what harm can be demonstrated, which is often significantly less since demonstrating actual harm from copyright infringement tends to be... 'difficult' to say the least.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 4:16pm

    empathy

    " but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans"

    Are you kidding? Have you ever listened to Ted Cruz at all?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 5:43pm

    Laws are for the little people.

    Not senators.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 18 Jul 2016 @ 11:07pm

    Are you kidding me?

    Some of the highest profile copyright cases (including those of mega-fail defendants like Thomas and Tenebaum started out with VERY VERY VERY low offers of settlement. Considering the volume of infringement in those cases (Thomas was charged related to 30 or so file, even though there were literally hundred or even thousands possible) and yet the settlement offered was as low as a few thousand dollars.

    So for Cruz, a settlement in the same range is likely. That isn't political favoritism or anything like that - it's a reasonable offer made in almost every case.

    The real difference? Cruz probably has lawyers smart enough to know to settle, instead of pushing on and on through court with horrible legal advice, crashing into a dead end of full liability and a life long punishment to pay off.

    In most cases, it's how you choose to handle it. Cruz will likely have it handled quietly and discretely, an amount will be paid and the case will be settled, and everyone can move on. Jammie Thomas? Who knows where she is hiding anymore, there ain't much call for download martyrs these days.

    reply to this | link to this | view in chronology ]

  • icon
    Aaron Walkhouse (profile), 19 Jul 2016 @ 4:41am

    Tim? Spellcheck:

    cache ==> cachet

    ;]

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 5:14am

    Why is Cruz the target of the lawsuit and not the Ad Agency?

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 19 Jul 2016 @ 5:51am

    Obviously he should be sued for 1 BEEELION dollars. Because copyright.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 7:32am

    Fortune Cookies

    Who knows, maybe he did.

    But, it's not like he needs to look for fortune cookies on his server, because of all of the Chinese takeout.

    reply to this | link to this | view in chronology ]


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