Singers Sue Label For Failing To Sue Others For Infringement
Techdirt has covered many copyright lawsuits in the past, but this one is a bit different. Singers Daryl Hall and John Oates have filed a suit against their publisher, Warner/Chappell Music, who they claim have failed to enforce their rights and sue an unnamed singer-songwriter for infringement. They claim this is in breach of their contract, and are seeking the termination of said contract as well as unspecified damages.
Two things strike me about this lawsuit (although I’m not a lawyer and haven’t seen the contract, so take it for what it’s worth). First, though the alleged infringer isn’t named, there seem to be two possibilities given they date it as 2006 – Nelly Furtado’s Maneater was apparently influenced by it, and it was sampled by the Ying Yang Twins in their song Dangerous. I would have hoped both of these would be covered by fair use — Oates in fact said of the former, “it’s flattering and it makes you feel good because you think you’ve influenced a new generation of musicians.” The second is that litigation should be a tool of last resort, and a lawsuit over someone not suing isn’t exactly in line with that sentiment.
In fairness to Hall and Oates, their reasoning for the filing is that Warner/Chappell have failed to act over a “conflict of interest”, which implies the publishers were benefiting from the alleged infringement and failing to pass that benefit on. Still, the idea that a label could be liable for failing to sue for copyright infringement is hardly likely to improve the litigation-happy nature of the industry at present.
Re: Re: Re: Re: Re: What should the new business model *be*?
I couldn't tell you how much he's made (he shares his name with a comms exec so is harder to find than I can put effort into at the moment, and that's assuming he's made that info public). It seems reasonable to extrapolate that it's more than he was making the old model, given he had been pursuing direct sales of music and "getting nowhere", and is has a following and is amongst other things being offered commission work. That's the comparison that's important, really - is there more incentive to create, perform and share ("promote the progress", as they say). In the wider picture, it fits with the fact that though the recording business is struggling, the music business goes from strength to strength - and, lest we forget, cash isn't the only incentive out there.
Apologies for the snarkiness, but this is well-trodden ground, and many aren't as reasonable as you about it :)
Re: Re: Re: What should the new business model *be*?
Ah yes, Masnick's Law. To save you the trouble of searching for a small artist who can make free work: http://techdirt.com/articles/20090114/0645323402.shtml
Now we wait for the claim that even if it works for the small guys and the stars, it won't work for everyone in between.
Re: What should the new business model *be*?
You must be new here - Techdirt makes a habit of pointing out new models (plural) that are proving not only to be equal but in many cases superior replacements. Try searching the site for Trent Reznor to get you started.
Best guess is to avoid loopholes
If VC funds are unregulated and hedge funds are regulated, I'm guessing a large number of hedge funds will attempt to reclassify themselves as VCs. Say for instance you limit the leverage you can have on debt - that's not going to affect the vast majority of VC funds because as you say they're not based on leveraged debt. It would stop the "bad" behaviour and leave the good well alone, regardless of what you called yourself.
Of course, that assumes the laws are well thought out and written, and don't end up landing VCs in a beauraucratic nightmare, which I'll grant you is a pretty big assumption (Sarbanes-Oxley springs to mind).
Re: Re:
I don't imagine you'd care to either provide evidence for the claim that without copyright musicians can't make money, or to address the Trent Reznors of the world doing precisely that, or the fact that in the face of declining sales of plastic discs and rampant piracy the music business as a whole - and don't only count the recording industry in that, please - is making more money than ever?
Do you have a blog or some such? Your writing - particularly the use of "the man" as an idea when you've so wholly bought into the recording industry's rubbish - is so laced with delicious stupid I'd enjoy a regular dose :)
Re:
I love the completely arbitrary nature of your definition of "raw material". How many musical notes counts as "raw material"? It has to be more than one; there's only so many combinations of two you can have before you then can't have any more music ever. Is it one octave, one melody, one whole song?
How about you name a number of notes where the transition from "raw material" to "product" happens, I'll whip up a system to create every possible combination (permutation generation isn't hard), and together we can own all music ever and RULE THE WORLD!
Sadly, that's a pretty close approximation of how musical copyright is working currently.
A small positive amongst a larger worry
While I would welcome this outbreak of sanity, we're still clearly on the wrong track if we have an Intellectual Property Minister at all - that indicates not looking at IP as a means to an end (increased innovation and creativity) but as a means in and of itself - until government starts looking at this from the correct point of view, I worry that we're only going to the interventionalist and protectionist point of view in any discussion on the matter.
Oh well, baby steps.
Re: Re: Re: Re: Perspectives
Oops, I can't work the comment system.
I haven't currently got the time to go over all the evidence for my contention, but I'll give you this as food for thought. Between 1995 and 1999 an average of 40 'novel molecular entities' were registered; between 1999 and 2004 the average was 28, and according to one Ben Goldacre are increasingly the same thing changed enough to get a patent - http://www.badscience.net/2008/09/the-medicalisation-of-everyday-life/ - incidentally he makes good points about over-medicalisation to the profit of pharmaceutical companies, which while isn't a result of patents certainly won't be helped by it.
So we're seeing less new drugs now than in the nineties. Obviously we can't say with certainty that the drugs developed then would have been without protectionism, but what you can say is that there are diseases that are woefully under-researched (TB, malaria, HIV/AIDS, etc) that just aren't being addressed (why else would charities, the WHO and so on attempt to fund them themselves?). 10% of research capital goes into research that would help 90% of the global population, and much of the other is duplicated work to exploit the patent system (if anyone has a study on how much, I'd be fascinated - no time to look now). And this is all before we get into high prices through lack of competition, too.
I'm not saying removing patents instantly solves this - flogging viagra to wealthy octogenarians will always be lucrative, I suspect - but they are a piece in the puzzle.
Re: Re: Re: Perspectives
Re: Perspectives
Actually, I'd contend that the patent system is holding back the creation of new drugs rather than encouraging them. Patents create misaligned incentives if we're actually talking about curing diseases. If one has the patent on the most effective treatment for a particular disease, then you've essentially got control of that market even if your drug is a tiny amount better than the competition (unless your pricing is a long way out). This means there's a lot more gain in improving treatment for something pretty much cured - or more accurately, marketed as such - than for research into diseases in less affluent markets. There's also a huge incentive for the existing market leader to continually refine their drug, not to make it more effective but to renew their monopoly.
It's something of a crisis in the industry - they're basically competing in a saturated market, and the individual best course of action doesn't expand that market and is destructive for the industry as a whole as well as being sub-optimal for curing disease.
I also take exception to your last statement; software development and drug research are not zero-sum games. If getting rid of patents means more wealth is created, then both win. Anyway, medical research existed before pharmaceutical patents, so the idea that it'll vanish is laughable.
Re: Re:
I think you'd have a case for infringement being objectively immoral if you could show it had a detrimental effect; the evidence points the other way on that one. I think you need to recognise that critiquing your opinion isn't disrespectful, it's healthy. I also think you need to realise there's all kinds of shades of grey between creative influence and copying that fall under the umbrella of "infringement" as-is.
Finally, I think I use the phrase "I think" too much :)
Re: open source is a myth, software should cost money, VC business is nuts
I am highly amused by this. 1) has already been rebuffed pretty comprehensively, but I'll add to 2), because it's such a convoluted mess of different ideas and serious confusion. You can't call Facebook and Twitter different, model-wise - they, like the myriad of other web companies out there at the moment, both sell the service rather than the software. Some companies doing this aren't profitable, but the fact there are plenty that make money shows the SaaS model is viable and hence you don't have to charge for software.
So if I'm a US startup, I now not only have to pay for a patent lawyer to write up and apply for my application (with searches and whatnot), I have to pay $35k minimum to these guys, and I'm still not insulated against IV and the rest? Inventing something sure sounds like a way to lose a lot of money very quickly right now - but hey, protection rackets are the business of the future, right?
Re:
It's worse than that - although we in the UK have comparatively good competition in the telco space (especially in broadband), BT still controls most of the copper that everyone has to go through, and I've known businesses be explicitly told by sales reps that if they didn't take a BT package for other services, they'd get nerfed performance and zero service on the parts they had to take from BT (which, by the way, is against BT's public mandate and super illegal). In theory, those parts of the business are disjoint and independent. Theory's such a wonderful thing.
Essential public service providers that get transformed into private enterprises with no competition are about the most anti-consumer, anti-free-market, anti-anything-bloody-working invention ever, and sadly they have been something of a British obsession in recent years.
Re: Well Said
Actually those who allow free copying have ended up making much more money (see: Trent Reznor, Radiohead et al). It's not greed, it's a combination of fear of change, fear of loss of control and blind ignorance.
Re: Re:
Yes, I think that's a distinct possibility. The effect is the same whatever their motivations, though, and that's the bit that's interesting - although of course motivations would play a big part in the number of future actions.
Re: Samples=Fair use?
I have no idea whether they qualify as fair use under current US law (I'm neither a lawyer nor American); I just think they're the kind of things that should be fair use.
Re: Re: Or it could be that . . .
The friend in question is the phone bill payer in a flat of 3, and they often have guests over who use the internet (geek flat) - amongst a bunch of other issues that have been gone over often, we asked them to identify which person using the connection was allegedly infringing (bear in mind UK copyright law requires you to be the infringer or to have given explicit permission you to be liable). Their response was that my friend should seek legal advice, or maybe just pay up because it was cheaper that way. My friend responded pointing out they'd addressed nothing, and DL finally came back with what looked like a stock "secure-your-wireless-connection" response to the wireless defense (which we hadn't used, but obviously others had).
Or it could be that . . .
. . . in order to appear like a normal peer they seed as they leech, and are covering their backs. Or perhaps they're actually looking to go after downloaders instead of uploaders. Don't get me wrong, knowing someone who got a Davenport Lyons letter I can attest that it is a shakedown, and that they're pretty unscrupulous in their dealings, but I wouldn't call this a "smoking gun" for the activities you're describing.
Re: wtf
I'm an XP and Ubuntu user, and Ubuntu is much much easier to get up-and-running and to configure than any flavour of Windows is, and is compatible out-of-the-box with much more hardware than Windows is (in my experience). The differentiator is that because Windows is the dominant force, vendors and OEMs put effort into compatibility and drivers and whatnot for Windows and not for Linux (and the Linux community's fragmentation doesn't help on that front either). Linux competing with that is kind of a chicken-and-egg problem.
That's a major advantage when you supply hardware and software together, as Apple do - you just don't have to deal with that messiness, and it should be easier to really polish that end-user experience.