Archive | Legal Woes
As they did last year, Google has, without warning, deleted a number of established music blogs hosted on its Blogger service. The shutdown is due to alleged copyright infringement complaints, though at least one blogger claims his posts were all pre-cleared with labels or PR firms. You may have seen the controversy as the trending Twitter hashtag #musicblogocide2k10.
From Hypebot:
In an email sent to I Rock Cleveland, Pop Tarts, Masala, To Die By Your Side, It’s a Rap, Living Ears and perhaps others, Google said that it had been sent multiple copyright infringement notices from record labels. Each blogger awoke to find years of posts deleted and a notice from Google’s Blogger team, “We’d like to inform you that we’ve received another complaint regarding your blog.” said Google. “Upon review of your account, we’ve noted that your blog has repeatedly violated Blogger’s Terms of Service. Given that we’ve provided you with several warnings of these violations and advised you of our policy towards repeat infringers, we’ve been forced to remove your blog. Thank you for your understanding.”
“I do admit, I’ve been accused of infringement before, but in each and every case it happened after posting an mp3 pre-cleared by a label or pr-firm,” I Rock Cleveland blogger Bill Lipold tells Hypebot. “The IFPI, acting unknown to the label, would find me a couple months later and file a claim.”
“I like to think that me and my blog, I Rock Cleveland, were one of the good guys,” continued Lipold. “I worked closely with labels and pr firms, being careful not to step on anyone’s rights, careful not to post any audio which wasn’t approved for promotional purposes. I provided news and reviews for a small, dedicated readership in Cleveland. I Rock Cleveland wasn’t about free music or piracy, but about getting people to think about what they’re listening to and exposing them to new sounds. Still, I got caught up in this mess.”
Unfortunately these unwarranted (if they are, in fact, unwarranted) actions and similar cease & desist notices occur because the independent firms hired to police piracy are usually never in sync with labels’ promotion and publicity departments. Another layer of complexity is often added when artists, their managers and their publicists solicit coverage on their own, sometimes before checking with the labels. Without knowing more about the specific alleged infringements, it’s difficult to say whether Google acted appropriately or not in these cases.
Regardless, in this case, the labels probably aren’t the bad guys, but it’s shocking an effort hasn’t been made to create some sort of “safe” list for these DMCA enforcement services and to open up the lines of communication with the labels’ publicity channels. It’s not stopping or preventing piracy, and it’s not fair to the artists who need the publicity, the promotion people working their asses off for them or the sites kind enough to help promote them.
The first-ever P2P case against an individual is heading back to court. The RIAA announced last week that the case of Capitol v. Thomas-Rasset would go before the court again for a third trial after defendant Jammie Thomas-Rasset rejected a $25,000 settlement in January.
That first trial, in 2007, found Thomas-Rasset liable for copyright infringement with a $222,000 fine. A retrial was then granted after a mix-up with jury intructions. At the second trial, in 2009, Thomas-Rasset was again found liable, but with a more shocking $1.92 million fine. In January, federal judge Michael Davis decided that this was “monstrous” in its disproportionality and adjusted the damages to $54,000. The RIAA could either accept this decision or request a third trial.
The RIAA then sent a letter to Thomas-Rasset’s lawyers with an alternate offer. Thomas-Rasset could settle for $25,000, with all of it donated to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating the $54,000 order.
“We have done everything within our power to resolve this case on fair terms,” Cara Duckworth, VP of communications for the RIAA, said in a blog post on RIAA.com. “The defendant is someone who knowingly distributed hundreds upon hundreds of unauthorized songs without any regard for those who created them, likely bent on the brazen assumption that she’d never get caught. During both trials she lied about her actions while under oath.”
Thomas-Rasset called the latest comments from the RIAA, “the same vitriol they’ve been spewing about pirates destroying their business. Now we get to go back to court where the statutory damages have to bear some semblance to the actual damages and they are scared of that.”
Duckworth added in her blog post that “American taxpayers should not have to bankroll a publicity campaign that the defendant and her counsel apparently seek. But if another trial is what is needed to close the book on this case once and for all, then we are left with no choice but to reject the Court’s remittitur and proceed to a new trial on damages.”
Fun fact: one of the alleged infringements is a Morbid Angel song, and the defendant claimed to not even know Swedish Death Metal is a genre.
[via Ars Technica]
According to Billboard, Prosthetic Records has filed suit against distributor Razor & Tie. The suit centers on a disagreement regarding the expiration date of Razor & Tie’s contract with Prosthetic, and alleges Razor & Tie failed to comply with parts of the distribution agreement.
From Billboard:
In the suit, Prosthetic claims that its distribution agreement with Razor & Tie expired on Jan. 1, 2010, and is of no further force and effect, other than those obligations that run from Razor & Tie to Prosthetic following the expiration of the term of the Distribution Agreement, and is not binding on Prosthetic. According to the complaint filed by Prosthetic, Razor & Tie claims the agreement has not expired.
Prosthetic also claims that Razor & Tie failed to comply with the distribution agreement, alleging it did not deliver 10 out of 12 releases to digital outlets in a timely manner, and did not release the band Skeletonwitch’s album to Canadian retailers and iTunes Canada.
The suit also alleges Razor & Tie failed to render proper and accurate accountings to Prosthetic, including, but not limited to, failing to properly account for Bulk CDs, digital revenue and reserves; and distributed digital copies to foreign territories outside the authorized territory of the Distribution Agreement. Prosthetic is seeking release from its contract, as well as damages of no less than $100,000 plus interest.
Razor & Tie declined comment to Billboard. Prosthetic is home to notable metal acts Gojira and The Acacia Strain, as well as All That Remains, which was upstreamed to Razor & Tie proper for its more recent releases.
Alan Ellis, the former administrator of the defunct, high-profile music sharing site OiNK, was acquitted by a UK jury Friday on charges of conspiracy to defraud. The verdict comes 2 years after British police arrested Ellis. This was the first trial in the UK where an individual was prosecuted for file sharing.
Ellis, 26, ran the torrent search engine which facilitated 21 million downloads from 2004 to October 2007, when it was shut down in a police raid.
During its operation, users were solicited for donations to the site, although it was not required for use of the site. The jury was told that police found almost $300,000 in Ellis’s PayPal account and that he received £11,000 (roughly $18,000) a month in donations from OiNK users.
Ellis defended that he never intended to defraud copyright holders, and the site was set up to “better [his technical] skills for employability.” He testified that the donations were to pay for the server’s rental and any “surplus” would eventually be used to buy a server.
OiNK did not host any music itself, but rather indexed the torrent files that would be used for file swapping.
Ellis declined to speak after the trial.
[BBC]
Right now, when a song gets played on AM or FM radio, composers and music publishing groups get paid. Should the performers be getting paid as well? That’s what the Performance Rights Act is suggesting, and after kicking around Washington for a while, it looks like action will be taken on it this year.
Forbes Magazine reports about the battle that’s brewing, and who’s taking what sides. The NAB (National Association of Broadcasters) is in opposition to the act, stating that paying performers on top of composers and publishers will drive smaller stations out of business. It’s no secret that radio stations are losing money right now, with several radio companies filing for bankruptcy in the death rattle of the last decade. However, any station with less than $1.25 million in annual revenue would be able to play a flat fee of no more than $5,000 per year, which is about 75% of radio stations. Still though, $5,000 is $5,000, and even if that’s less than $100/week for stations, you can’t get blood from a stone, especially if that stone has seen its relevance and audience shrink significantly in the past few years. The NAB and some of the broadcast groups have formed the Free Radio Alliance to try to combat the Performance Rights Act. Read more »
Charles Nesson, the defense attorney in the case of Sony v. Tenenbaum, the second ever P2P civil trial, is possibly the most entertaining lawyer of all time. First he started asking potential jurors about turtlenecks, then he got bizarrely existential and now he’s asking for a re-trial, saying piracy is the music industry’s fault… for letting it be so damn easy.
I’m hoping he’s just trying to keep the case alive/get more press, because otherwise he’s completely insane. His argument is basically identical to the whole “she was asking to get raped with that oufit” thing. From Ars Technica:
“Plaintiffs, in August 2004, could reasonably be considered to have been at least partially responsible for the widespread dispersion of their recordings over peer-to-peer networks like Napster and Kazaa,” writes Harvard Law professor Charles Nesson, Tenenbaum’s lawyer.
“Their continued conduct of releasing their recordings into a digitally networked environment on DRM-free CDs made the proliferation of their recordings on the peer-to-peer networks trivially easy. Their aggressive promotion of their recordings made such proliferation entirely predictable. Indeed, their mode of publication all but invited sharing. Plaintiffs knew, or should have known, exactly where their sound recordings would end up.”
It’s been an awesome week in bizarre music news.
In the aftermath of Sony v. Tenenbaum, the Boston RIAA case in which the defendant admitted liability and the Court awarded $625,000 to the RIAA, the Court is questioning whether these six-to-seven-figure awards are excessive and should be reduced in certain scenarios.
From Slashdot:
However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court’s views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use.”
Hey, if you’re guilty, you’re guilty, but re-evaluating these seemingly arbitrary penalties could serve to bring some reasonable guidelines for future cases.
While only two highly pricey RIAA file-sharing suits against individuals concluded in court this year (Capitol V Thomas-Rasset and later Sony V Tenenbaum), four other trials were established, with the defendants failing to appear in court. The same judge who oversaw the Tenenbaum trial issued default judgments this week, to the insane tune of…minimum penalties.
The four defendants who failed to appear (and thus suffering an automatic loss) will have to pay damages of $750 per song, an average total of $7,500 each. Now while that would crush most twenty-somethings, it’s certainly not the terrifying price tag of $675,000 and $1.92 million issued to Tenenbaum and Rasset, respectively. Not to mention how much they spent on lawyer fees for their multi-year trials.
There you have it. Get called to court, don’t answer. It’s working great for Roman Polanski.
Just in case any of our readers are dumb enough to take my writing as serious legal advice, some of Ars Technica’s readers make a good point.
I was interested more in what happens within the federal court system for this article, but several commenters rightly point out that “not showing up” isn’t the cheapest way out of such situations. Settling with the RIAA usually leads to payments of between $3,000 and $5,000, lower than the default judgments issued here by Judge Gertner. Convincing a jury that you’re innocent could be cheaper still (if you find a pro bono lawyer), though it comes with certain obvious risks.
[Via Ars Technica]
The Fear Factory saga continues, though it’s really only entertaining when Dino is running his mouth. Our buddies at MetalSucks were nice enough to comb through vocalist Burton C. Bell’s very dry interview with Rock My Monkey and give us the gist of it, including the internal tension caused by bassist Christian Olde Wolber’s affair with manager (and now wife) Christy Piske:
Bell’s side of the story is that during the mixing of the Dino-less FF offering Transgression, Christian Olde Wolbers started having an affair with the band’s manager, Christy Priske. And I guess things got pretty serious, ’cause the two are married now. Bell found Wolbers and Priske’s shitting where they eat as “completely unacceptable,” and things got worse when Priske, Wolbers and Raymond Herrera allegedly brought Bell some new business arrangement which he also disliked. And then things really fell to shit: Bell says he refused to work with Priske, Wolbers and Herrera refused to let her go and refused to reunite with Dino, and now we have all this fun mud slinging in a public forum.
Bell goes on to briefly discuss the ongoing legal battle, claiming he and Dino Cazares, were the ones to initially file suit:
Rock My Monkey: So you definitely feel that they had a choice other than the legal action that they took to resolve this dispute?
Burton: [Laughs] They did not initiate legal action. Dino and I filed a lawsuit first. We filed a suit maintaining that we had the right to use the band name and to take care of some other issues. So we filed the lawsuit first.
The Sucks guys ask what the suit could possibly be, since we already know Herrera and Wolbers share equal stake in Fear Factory Inc. (and therefore, the trademark). If anything, you’d expect Wolbers and Herrera to be the ones filing, since they need to protect their stake.
We don’t know any of the details of the suit or how the company is structured in terms of who makes decisions. The Wolbers affair shouldn’t affect his shareholder status, though it may have implications in a court deciding his ability to proceed as a decision-maker within the “company.” Any lawyer-type, or better yet, anyone familiar with the case is more than welcome to help us out, since my legal experience ends with the time the cops found me digging through Tina Fey’s dumpster.
Sony v. Tenenbaum, only the second copyright infringement case brought to trial out of approximately 18,000 individuals targeted by the RIAA, concluded late Friday afternoon with the RIAA awarded a penalty of $675,000. That’s a tough pill for a Boston University graduate student to swallow, though significantly less than the $1.92 million Jammie Thomas-Rasset currently owes.
According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage. Following these cases, the RIAA has promised to stop suing individuals (though they will ask your ISP to cut you off).
Oh, and for those asking: no, the artists whose songs were infringed in these cases see none of the money.
Posted by Dan Rodriguez on Tue, Feb 16, 2010 at 3:30 pm
Legal Woes, Piracy