by Mike Masnick
Wed, Jan 29th 2014 12:02pm
by Mike Masnick
Mon, Jan 27th 2014 8:42am
from the someone-needs-to-find-a-better-lawyer dept
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.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.
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.
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."
Fri, Oct 18th 2013 11:01am
from the 28-years-later dept
I'll never forget the Christmas party my grade school threw when I attended it. Not because of the food. Not because of the friends. No, I'll always remember it because I won a brand new in-the-box Nintendo Entertainment System in the raffle. And when we went home, my father plugged it in, allowed me to play the included Super Mario Bros. cartridge for five minutes before insisting it was time for bed. But those five minutes were everything to me that night and they spawned what would be the next 25 years of passion for gaming, for my appreciation of it as an art form, and for what has probably been thousands of dollars spent in total.
So, you can imagine my elation when I heard about FullScreenMario, a project begun by a college kid to not only recreate the original hallmark of home-gaming, but also to allow fans to expand upon the original and build their own levels, built on the latest web standards, and open sourcing the whole thing. Unfortunately, as you've probably already expected, Nintendo saw my elation, my joy, and promptly crapped all over it.
"Nintendo respects the intellectual property rights of other companies, and in turn expects others to respect ours as well," Nintendo said in an e-mailed statement. "Nintendo is seeking the removal of the content, as we vigorously protect against infringement of our intellectual property rights."Now, nobody can doubt Nintendo when they get all puffy chested about how vigorously they protect their IP. But why is this even an option? How far gone are we down the intellectual property rabbit hole when projects like this, which people love, and which don't (in any way) harm the original offering, are shuttered? Because whatever your thoughts about copyright in general, if there is one industry for which the never ending copyright extensions make zero sense, it's for video games. As Tim Lee notes:
When the United States was founded, the maximum copyright term was 28 years. "Super Mario Brothers" was registered with the copyright office in January 1986, so if copyrights still lasted for 28 years from the date of registration, the game would be due to expire in about three months. Then anyone would be free to re-create the game, as Full Screen Mario does, or to create new games based on its groundbreaking characters, levels and music.In general, "might struggle" might as well be replaced with "can't." Sure, Nintendo and other companies are still building off of franchises from days gone by. So what? Recreating the original Super Mario Bros. doesn't harm any of that. Allowing users to build their own levels and engage in something like a Minecraft community would only build the brand further. We can certainly say that Nintendo would be better off not shutting this project down, say by working directly with the creator, but that shouldn't even be a question. We're at the 28 year mark for Super Mario Bros. Imagine how stupid this is all going to look in 95 years. As the article notes, even those who think gaming companies need some copyright protection should be able to see how ridiculous current lengths are.
If copyright terms were shorter, old video games could find a new, emulated life when their copyrights expire, just as the Gutenberg project has made thousands of books published before 1923 freely available online. That's especially important because old consoles wear out much faster than old books do. If you find a book published in 1980, chances are you'll be able to read it without much difficulty. But if you find an old Atari video game cartridge, you might struggle to find the Atari 2600 console required to play it.
But don't video game companies need copyright protection to encourage them to produce new video games? Of course they need some copyright protection, but 28 years is plenty. Most games make the vast majority of their revenue in the first few years after release. Only a tiny majority of mega-hits such as Super Mario Brothers are still commercially significant after 28 years. And those games have already made their investors' money back many times over. We've had long copyright terms for so long it's hard to imagine what the world would look like without them. But copyright is supposed to be a bargain between creators and the public: Creators get a monopoly for a limited number of years, and after that, the public gets to use their works for free. But copyright terms are now so long that most of us will die before the videogames of our childhoods fall into the public domain.So thanks again, copyright, for standing in the way of us all having a little harmless fun. It makes me mad enough to stomp a turtle.
by Mike Masnick
Mon, Aug 26th 2013 8:42am
Kevin Spacey: Give Users Control, What They Want, When They Want It, At A Fair Price, And Stop Worrying About Piracy
from the well,-duh dept
Clearly the success of the Netflix model, releasing the entire season of House of Cards at once, proved one thing: the audience wants the control. They want the freedom. If they want to binge... we should let them binge.... And through this new form of distribution, we have demonstrated that we have learned the lesson that the music industry didn't learn: give people what they want, when they want it, in the form they want it in, at a reasonable price and they'll more likely pay for it rather than steal it. Well, some will still steal it, but I think we can take a bite out of piracy.Ignoring the misleading use of "steal," he's making exactly the right point. Nothing (absolutely nothing) does away with all copyright infringement. But if you can get a huge number of people to give you money, it doesn't matter. And the best way to get more people to give you money (and, in fact, to give you more money) is to give people more of what they want. That includes good content, but also convenience, ease of use, and reasonable pricing.
He goes on to say a few more things worth listening too, including the fact that people want good stories, whether they're in movies, TV shows, video games or something else, and the entertainment industry has a real opportunity to deliver it.
The clip is five minutes long and worth watching. The point, as we've been saying for years, is not to justify "piracy" or infringement, but to show that the "piracy" problem might not be a problem at all if you can give people a good reason to buy. Spacey did that with House of Cards, and it's good to see more people realizing that piracy isn't the problem, but the symptom -- and the solution is a combination of good content, innovation, and recognizing that you need to treat the fans right, rather than as criminals.
Thu, Jul 11th 2013 11:10pm
from the you're-a-sport-now dept
The news now is that Nintendo wasn't just seeking to shut down the stream, but the entire Smash Bros. portion of the tournament.
Evo co-founder Joey Cuellar has revealed that Nintendo didn't just want to stop Smash Bros. Melee being streamed from this year's fighting game competition, they wanted to stop that part of the tournament taking place altogether.That is even more insane. It isn't often you can take any real life lessons from the world of professional sports, but Nintendo might as well realize something: it's in the professional sports business now. Tangentially, sure, but it's in it. EVO is but one example of professional gaming competitions. The trends seem to suggest that the world of pro-gaming competitions, leagues, and tournaments is only going to grow, perhaps even exponentially. And if that trend does indeed play out, Nintendo better take a page from professional sports leagues and encourage the playing of its games, rather than trying to shut it all down.
"They were not only trying to shut down the stream", he told OneMoreGameTV, "they were trying to shut down the event, the Smash portion of the event".
There's a reason why Major League Baseball puts such an emphasis on building baseball fields throughout the country. The NFL knows what they're doing when they make sure they have a stake in Pop Warner football. The NBA has its players going not only around the country, but around the world to host basketball clinics. More people playing your game is good for your game. Good for breeding better players, for growing markets, and good for generating interest generally in the game itself.
If Nintendo was smart, it might consider market-testing its own gaming "stadiums" or competition centers, building upon the interest to promote its own games and encouraging others to do likewise. Trying to shut down the tournament? That's just stupid.
by Tim Cushing
Wed, Jul 10th 2013 2:47pm
from the not-being-directly-monetized-by-us?-that's-a-raiding dept
The uneasy relationship between rights holders and fan translations just took another hit. Although there have been a few exceptions that recognize the value fan translations provide, the general response has been to shut down translation/subbing sites, even if they're not making any infringing material available.
A Swedish translation site has been shut down by rights holders, this time with the cooperation of local law enforcement.
According to a local report, servers and computers belonging to the owners of Undertexter (which means "subtitle" in Swedish) have been seized by police. In a statement on Facebook, the Undertexter folks note that their service is powered completely by fan-made translations provided for free. And, remember, we're talking about people sharing their own text translations for movies and shows they watched, not sharing the videos themselves.Rather than view this service, provided for free by fans avid enough to spend their spare time translating movies and TV shows, as an indicator of an untapped market, the industry has chosen to assert its control. And rather than handle it in a fashion more suited to the level of "criminal" activity being performed, it instead chose to utilize a compliant police force to carry out a full-blown raid.
The crackdown just shows how powerful the copyright industry is in Sweden. As Rick Falkvinge writes, "In Sweden, the copyright industry can legally order police raids. They are called intrångsundersökning and are technically executed by the Enforcement Authority who enlist Police in turn."Falkvinge points out more in his post, calling this action a "clear escalation of violence." The Swedish copyright industry has previously asserted that any fan translation would automatically be infringing as it owns the rights to the dialog, but had previously asserted its rights without resorting to raids by law enforcement.
Despite this show of force, the crew of Undertexter.se remains defiant.
Undertexter.se has had a police raid this morning (July 9) and servers and computers have been seized, and therefore, the site is down. We who work on the site don't consider an interpretation of dialog to be something illegal, especially not when sharing it for free. Henrik Pontén [the copyright industry's primary henchman in Sweden], who is behind the raid, disagrees. Sorry Hollywood, this was the totally wrong card to play. We will never surrender. [...] We must do everything in our power to stop these anti-pirates. [...]Somehow, the industry seems to believe that its failure to capture a market should give it exclusive control over the area not being served. If that means no translated movies, so be it. There's a wealth of free labor going into something that could be viewed as a value-added product, but viewing it through the stupidity-inducing lens of IP protection has rendered these translations "worthless" at best and a "threat" at worst in the eyes of the industry.
by Tim Cushing
Wed, Jul 10th 2013 2:37am
from the it-can-be-taught! dept
Nintendo's adversarial relationship with its fanbase continues. Following on the heels of its colossally boneheaded Let's Play YouTube land grab, the company decided to yank its Super Smash Bros. Melee from the Evo (Evoution Championship Series) live streams.
Competitive Smash Bros. fans have been working for years to gain acceptance from the greater fighting game community. Smash Bros. is very different from Street Fighter, Tekken, and Virtua Fighter, but as many have said, it still is a fighting game, despite what some of the more exclusionary members of the FGC may tell you.Instead of being thrilled its game was going to be featured alongside other prominent fighting games, Nintendo felt the best course of action was to "protect the brand," even if that meant the company's public image would greatly resemble a bootleg window sticker featuring Calvin peeing on a pink ribbon.
These years of effort have more or less paid off. After raising nearly $100K for Breast Cancer research, Smash Bros. Melee was set to be a marquee title at Evo 2013 this weekend. As the live stream phenomena has grown in prominence and popularity over the years, so has Evo's online presence. Evo 2011 was streamed by over 2.2 million viewers (still working on digging up numbers for 2012). That's more than Bayonetta sold in the US.
Needless to say, the backlash was immediate. A petition was posted at change.org asking Nintendo to reconsider its decision. Of course, Nintendo hardly seems concerned with the public's reaction to anything at this point, so it's kind hard to imagine an internet petition changing its mind. In fact, it's hard to imagine anything changing its mind, even vague promises to support the WiiU, issued with the same momentary earnestness as the pained vows to attend church more frequently that often follow long nights of hard drinking and bad decisions.
But, as hard as it is to imagine Nintendo walking back a "protect the brand" decision, it's actually a true fact.
Update #2: Nintendo has reversed its decision! They're now allowing Melee to stream at Evo this year. Though Nintendo has its share of old codgers that don't know how to internet, maybe this proves that their younger colleagues have the capacity to shake them into reality, and in just a few hours no less.They say you can't teach old dogs new tricks. However, it appears the old dogs still have a healthy respect for the sting of the tightly-rolled
Thu, Jun 27th 2013 11:09pm
from the free-market-research dept
Speaking of Double Fine, that's exactly what happened recently with their newest Kickstarter Project, Massive Chalice, a tactical strategy game set in a fantasy realm in which players first fight the ever-present demons, then grow older and start families within the world, so those families can continue fighting the ever-present demons. It's an interesting concept on its own, but feedback from potential Kickstarter backers raised an interesting question: y u no allow gay marriage? Double Fine's response?
“One of the cool things is we have the opportunity to think about it and address it because we brought it to the community,” says [Double Fine's Brad] Muir, suddenly grinning. “We brought it to a broader group of people, and then there were some people who brought it up and wanted to talk about it. There’s a raging thread on our forums.”The coupling of Kickstarter's platform and Double Fine's actions is the very blueprint of CwF+RtB. If you can manage to check any ideological feelings about gay marriage at the door, from either side of the debate, this is pure market feedback resulting in a product more potential customers desire. Muir notes that they didn't preclude gay marriage in their game consciously. It simply never came up. Comments on their project alerted them to this, as well as providing a clear desire from many gamers that this kind of option be included, so they went back and put it in. More notable, Muir seems to think this all would have gone much differently under a more traditional, game-publisher route.
So hurrah, hugs and well-muscled sexytimes for all. This, Muir figures, is the optimal outcome. Everybody wins, and then they all get married.
“If we had gone with a publisher on this, I really think [it wouldn't have ended well]. Because you sign the deal, you go underground, you start working on the game, you don’t talk to the community or anybody, and you get so focused on all these other aspects of the game. Just making it work – and all the tactical combat and mechanical things. We might just overlook something like same-sex coupling all the way until we announce the game. And then people say, ‘Hey, what about gay marriage?’ And we’re like, ‘Fuck,’ because we’ve already worked on it for more than a year.”In other words, this is a direct result of connecting with their fans. And, by being proactive about it, they avoid the kind of mess that other games have had when their stance on the subject is vague. So, regardless of your politics, we should all be applauding Double Fine's ability to listen, engage, and react to the feedback they get from their customers. Is it any wonder they have been so massively successful?
by Mike Masnick
Fri, Jun 14th 2013 12:18pm
Pianist Storms Off Stage, Claims Fans Filming His Performance Mean Record Labels Won't Give Him A Contract
from the can-we-have-a-little-reality,-please dept
Classical pianist Krystian Zimerman stormed off the stage after spotting someone in the audience holding up a mobile phone. It's not entirely clear how he knew they were recording video, rather than merely taking a photograph, but either way, he came back to insist that YouTube was somehow destroying his career:
On returning, he told the audience that he had lost many recording projects and contracts because music managers had told him: "We're sorry, that has already been on YouTube." "The destruction of music because of YouTube is enormous," he added.Now, let's think about this for a second. This makes absolutely no sense. A shaky smartphone recording of a live performance of a song does little to nothing to take away from a recorded version of the song. The two are entirely different. Furthermore, such a video is actually much more likely to drive more interest in both the overall works of the musician and in going to see them perform live.
Now, I can understand why some musicians might find it generally distracting, and might even put in place general rules within the venue that require people not to film on their mobile phones. And, if such rules are in place, it seems completely fine for the venue to ask those who violate the rules to leave. But to argue that such actions are "destroying the music business" is simply not supportable in reality. And, frankly, if music managers have actually told him that he's lost a record contract because a performance is on YouTube, then it seems pretty clear that he's dealing with clueless music managers. If a music manager said that, my first reaction would be to find a reality-based music manager, rather than a completely clueless one, because the manager who reacts that way is clearly not going to be helpful for the rest of my career.
Unfortunately, others, including the person behind the festival took the bizarre complaints even further:
Franz Xaver Ohnesorg, the festival's director, said he felt a great deal of sympathy towards Zimerman, one of the star performers. "What happened is theft, pure and simple," he told German media.Theft of what? And how? This goes beyond just the whole "it's not theft if nothing is missing" argument. This is not theft under any possible interpretation of "theft." This was just a fan wishing to create a digital memory of the experience, and possibly share that with others, such that others might look forward to more of Zimerman's music and performances.
Again, I recognize that some musicians might find it distracting, but the focus should be on that, rather than bogus claims about it being "theft" or laughable claims about recording contracts not granted because of fan videos.
Tue, May 21st 2013 11:04am
from the raining-on-everyone's-parade dept
Update: As of today, there are reports that Ferrero has been in contact with Sarah Russo and has worked out an arrangement by which Nutella Day will be reinstated with the company's blessing. The company is blaming the cease & desist on over-zealous lawyers as opposed to any public backlash. This may satisfy some people, while others will note that aggressive intellectual property laws and protection lead to this kind of collateral damage all the time.
Ferrero, the makers of Nutella, a hazelnut/chocolate spread that enjoys a love from people that I'll never understand (disclaimer: I hate chocolate), sure doesn't like anyone to use anything remotely like its name ever. You may not recall that it pushed back against the P2P network Gnutella a decade ago over their name being too similar. While you could argue that might be at least somewhat understandable, how about when the company went legal on a smoothie shop for selling a shake that used its product and had the daring gall to, you know, tell people what was in it? Well, perhaps you think that at least Ferrero was targeting a commercial enterprise, even if doing so resulted in one less shop buying Nutella. I mean, it isn't like the company was going after ordinary customers who liked its product, right?
Well, ChurchHatesTucker writes in to inform us that Ferrero is doing exactly that, because f#$@ the fans, damn it. See, there is apparently something called World Nutella Day, which is ironically on my birthday (God, I hate Nutella...), where one website encourages everyone on the planet to cook something with Nutella. This, naturally, requires people to buy Nutella. Or it did, rather, until Ferrero threatened the creator of World Nutella Day with a cease and desist, forcing her to shut down the site completely. Via World Nutella Day founder, Sara Rosso:
On May 25, 2013, I'll be darkening the World Nutella Day site, nutelladay.com, and all social media presence (Facebook, Twitter), in compliance with a cease-and-desist I received from lawyers representing Ferrero, SpA (makers of Nutella). The cease-and-desist letter was a bit of a surprise and a disappointment, as over the years I've had contact and positive experiences with several employees of Ferrero, SpA., and with their public relations and brand strategy consultants, and I've always tried to collaborate and work together in the spirit and goodwill of a fan-run celebration of a spread I (to this day) still eat.Yup, you read that correctly. The makers of Nutella darkened a website purely designed to promote its product, even after directly working with Rosso for the last seven years. It's almost as if Ferrero doesn't want anyone to eat Nutella, with which I happen to whole-heartedly agree. No attempt to work out some kind of an arrangement, no even-handed license of the trademark, no humanity whatsoever. It's just, "Hey, thanks for being a fan, now shut it all down because the lawyers flipped out and somehow think you're harming us."
Honestly, the stunning part to me is how genteel Rosso appears to be about all this.
I've spent hundreds of hours interacting with you, the fans, collecting and sharing your contributions, updating the World Nutella Day website with more than 700 recipes which were painstakingly gathered from bloggers sending me their posts and by scouring the internet for the best Nutella recipes, Tweeting and sharing on Facebook your favorite sayings, stories, and links about Nutella, and encouraging everyone to try it just once! Thanks for letting me be a part of that – it was truly a labor of love by a fan and something I did as a fan, in my (very little) spare time, and I have a full-time job I love. I hope that February 5th stays alive in your hearts and on your spoons, and hopefully it's arrivederci (see you soon) and not addio (goodbye).It's hard to imagine someone sounding so sweet over the company of which she's a fan pulling such a brash and damnable move. I'd be livid, not hoping to start the site back up once Ferrero had a stupidectomy. I might even be encouraging everyone within earshot not to buy from a company that would pull this kind of stunt. Then again, perhaps I'm not as sweet as Russo because I'm not filled with Nutella spread. Who knows, but I'm sure there are many former customers of Nutella today.