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RIAA 'Elektra V. Barker' Case Is Settled
Posted by
CmdrTaco
on Mon Aug 18, 2008 02:30 PM
from the are-we-there-yet dept.
from the are-we-there-yet dept.
NewYorkCountryLawyer writes "Elektra v. Barker, one of the leading cases repudiating the RIAA's 'making available' theory, has been settled. Unlike in most cases, the actual settlement agreement (PDF) is on file with the Court, and a matter of public record. Now Ms. Barker's attack on the constitutionality of the RIAA's damages theory, as well as her other defenses — including unclean hands based on MediaSentry's illegal behavior, the RIAA's inability to sue for statutory damages, and innocent infringement — will not be adjudicated, and it will fall on the shoulders of other defendants to carry the day on those issues. Ms. Barker, a young social worker who lives in the Bronx, once told p2pnet 'I love music. I grew up in a house where music was played all the time. We had milk crates filled with albums.... So to be sued for having music files on my computer is an insult. It's a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music.'"
Related Stories
[+]
Your Rights Online: Tenise Barker Takes On RIAA Damages Theory 282 comments
NewYorkCountryLawyer writes "Tenise Barker, the young social worker from the Bronx who took on the RIAA's 'making available' theory and won, has now launched a challenge to the constitutionality of the RIAA's damages theory. In her answer to the RIAA's amended complaint [PDF], she argues that recovering from 2,142 to 428,571 times the actual damages would be a violation of Due Process. She says that the Court could avoid having to find the statute unconstitutional by construing the RIAA's complaint as alleging a single copyright infringement — the use of an 'online media distribution system' — and limiting the total recovery to $750. In the alternative, she argues, if the Court feels it cannot avoid the question, it should simply limit the plaintiffs' damages to $3.50 per song file, since awarding more — against a single noncommercial user, for a single upload or download of an MP3 file for personal use — would be unconstitutional."
[+]
Your Rights Online: RIAA Foiled By "Innocent Infringement" Defense 220 comments
NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question
remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song."
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Settlement (Score:3, Funny)
I guess her lawyer's barker was worse than her biter?
Re:Settlement (Score:5, Insightful)
I guess proceedings dragged on until she couldn't afford to pay the legal bills so she was forced to cut her losses. For your lawyer to bite you have to be able to pay them.
Parent
So... (Score:5, Funny)
Barker: We had milk crates filled with albums....
Elektra: So what have you done for us lately?
Hans Dannik
Re:So... (Score:5, Funny)
She'd better watch out, or the milk company will be after her for stealing their crates.
Parent
Re:So... (Score:5, Funny)
What's great about milk crates is that the milk bottlers finally retooled all their gear, so the crates were too small to hold 12" records. Narrower milk bottles, smaller crates, differently sized shelves in the stores...
And they got that all done just in time, too, because the new crates fit two rows of CDs just perfectly.
Parent
So... (Score:5, Insightful)
Re:So... (Score:5, Insightful)
There are some concepts that one should dedicate their lives to: freedom, equality, free speech, freedom of religion, etc. People have laid down their lives for these.
Then there are some that, while important, do not merit spending your entire life on. The time and money spent on this issue was probably too much for her, and upon reach an agreeable settlement she probably said enough is enough.
Life isn't about money or lawsuits or even sticking it to greedy cowards. Life is about living.
Spending time with friends and family is priceless, and dealing with these greedy labels probably robbed her of enough birthday parties, outings, and nights of sleep.
At some point, for some issues, you need to pass the baton. If you want to continue the fight, then pick up the baton and yell a battle cry. Otherwise, do not question someone wishing to end a struggle that they do not want to spend years on end fighting.
Parent
Re:So... (Score:5, Insightful)
There are some concepts that one should dedicate their lives to: freedom, equality, free speech, freedom of religion, etc. People have laid down their lives for these. Then there are some that, while important, do not merit spending your entire life on. The time and money spent on this issue was probably too much for her, and upon reach an agreeable settlement she probably said enough is enough. Life isn't about money or lawsuits or even sticking it to greedy cowards. Life is about living. Spending time with friends and family is priceless, and dealing with these greedy labels probably robbed her of enough birthday parties, outings, and nights of sleep. At some point, for some issues, you need to pass the baton. If you want to continue the fight, then pick up the baton and yell a battle cry. Otherwise, do not question someone wishing to end a struggle that they do not want to spend years on end fighting.
Glad your post was modded "Insightful" because.... it is.
Parent
Re:So... (Score:5, Funny)
Please quote responsibly.
Parent
Re:So... (Score:4, Funny)
There. Happy now?
Parent
Re:So... (Score:5, Insightful)
Parent
Re:So... (Score:5, Informative)
I'm not questioning motives, more looking for a press release or statement, or something to that effect, detailing why she gave up the fight when things had turned to her favor. I know firsthand the emotional and financial burden of being the target of a multi-(dollars earned per lifetime) dollar lawsuit from a car accident in my younger years. I also know that if the offer to settle for a couple thousand dollars was presented to me when I finished thrashing the suit of the plaintiff, I would've used that as yet more damning evidence that "Now they think their (pain and suffering/intellectual property loss) is only worth $X,000 instead of $Y,000,000...." I guess what I'm asking for here is not "I think they settled because of abc" but rather from the horses mouth (so to speak), "I settled because of xyz. With the decision on the table here presented in one neat little package (PDF? bleh), we're getting _less than_ half the story.
OK here it is:
Ms. Barker was a pioneer in leading the fight against the RIAA's "making available" theory, and in doing that she performed an important public service for all of us. Now after 3 years of having this case hanging over her head, the time had come to move into Phase II of the litigation, in which she would again have been leading the fight, this time by asserting key affirmative defenses. In fact, Ms. Barker's answer provides a detailed blueprint to those defendants who have in fact engaged in file sharing as to some of the defenses that are available to them. None of these defenses have been litigated before, so it would have taken a lot of work, and a lot of time, and would that have never been litigated before. What is more, once the defenses had been adjudicated, there might have been appeals which would have raised certain key errors in Judge Karas's March 31st decision repudiating the RIAA's "making available" theory, but creating an "offering to distribute for purposes of redistribution" theory which likewise was without a basis in the Copyright Act. Rather than going down that road, Ms. Barker decided to put this stressful litigation behind her, and pass the torch to others to carry it on.
Parent
Re:So... (Score:5, Insightful)
Parent
Re:So... (Score:5, Informative)
In your opinion, what were the chances of Ms. Barker winning the suit, had she not settled?
Good question. If you take a good look at Ms. Barker's answer [blogspot.com] you'll see that her defenses weren't about winning, they were about keeping the damages reasonable. E.g., if the RIAA were precluded from recovering statutory damages for the 8 recordings in exhibit A, based on the 4th affirmative defense, it still could easily have "won" the case and recovered its actual damages of approximately $3 US (or 2 euros).
Parent
Re:So... (Score:5, Informative)
for this to happen now, will someone have to go through again all the steps Ms. Barker went through?
No, the 3 years was devoted to testing the sufficiency of the complaint. Another defendant might choose not to do that, and to just file an answer to the complaint, putting those issues on the front burner.
Parent
Re:So... (Score:4, Informative)
so lets get this straight. This woman was guilty as hell yes? She DID share the songs and did download them yes? Just so we can establish the facts here. Did she do it or not?
Did you read her answer or not? Defendant admitted downloading copyrighted recordings without plaintiffs' authorization and she admitted that the songs were available to at least some other Kazaa members from her computer.
Parent
Re:So... (Score:5, Funny)
Heck, I'd let NYCL date any one of my sisters and smile.
I'm surprised they leave that up to you.
Parent
Re:So... (Score:5, Insightful)
Shareholders do. Owners do. The business model the recording industry wants to pursue is not viable. It is bad for *everyone*. The sooner that becomes clear, the sooner we have a reasonable and healthy industry that benefits both listeners and artists alike. The current model turning into a dismal failure makes it that much easier for a good model to emerge and flourish.
Parent
Re:So... (Score:5, Informative)
Any chance we'll get some of the reasoning behind the settlement? I understand that taking these thugs to court is a heavy burden, but after fighting it so long, why give up now?
Litigation is a very stressful thing. She fought the good fight for years, and in doing so performed an important public service. She leaves behind a legacy of (a) having sealed the doom of the RIAA's creative "making available" theory, and (b) providing a detailed blueprint of defenses that can be litigated by RIAA defendants who did engage in file sharing. Sometimes people just have to get on with their lives.
Parent
Re:So... (Score:5, Informative)
I get the impression here that by settling, even though she lost some money, she also made her legal contributions permanent precedents available for use by other cases. But if she had kept on, she risked backtracking and upsetting those precedents on appeal. Now that it is over, the RIAA can't appeal the precedents. Is this even close to correct? If it is, then it is probably much better to have settled for such a paltry sum. Related to that, is there any way for strangers to contribute to her payments?
Yes you can send me a check payable to "Ray Beckerman PC, As Attorneys", indicating that it's for Ms. Barker, and I will send it along to her.
Parent
Milk Crates (Score:5, Interesting)
Re:Milk Crates (Score:5, Funny)
In Canada, music comes in milk crates.
Parent
Re: (Score:3, Informative)
Re:Milk Crates (Score:5, Funny)
I've seen milk kept in bags, but it seems terribly inefficient. Sure, it keeps well, but how many people have the room to keep a 1-ton leather bag around just to dispense milk? Not to mention the maintenance and clean-up involved. Not for me - I'll just stick to my plastic jugs, thank you very much.
(Not to mention I'm not sure I'd be able to restrain myself from just extracting milk. I'm told that, apart from the milk, those giant leather bags are mostly filled with meat!)
Parent
Re:Milk Crates (Score:5, Funny)
In Canada, music comes in milk crates.
Yeah, that's no problem. It's having your milk come in CD cases that's a bitch.
Parent
Killing music for everyone (Score:5, Insightful)
"We had milk crates filled with albums.... So to be sued for having music files on my computer is an insult. It's a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music."
That's so sad but so true. I guess the truth is I don't listen to mainstream music anymore. It's kinda something I don't want anything to do with and the greedy record companies are the reason. The RIAA have turned what should be a cultural commodity and property of the people into a liability. Fuck the RIAA and everybody associated with them.
Re:Killing music for everyone (Score:5, Funny)
But how will artists make a living if everyone is stealing music?!?! Have we learned nothing from the death of Kid Rock?
http://www.theonion.com/content/node/28467 [theonion.com]
Parent
Re:Killing music for everyone (Score:5, Informative)
If I could actually listen to a whole album before buying, that would go a long way for me.. even if it's a checked flash audio stream, or something... I just don't like buying blind. My wife buys a lot of her music via ITMS, I make sure she burns/re-rips what was drm'd
"You wouldn't steal a car..." No, I wouldn't.. but if a friend asked, "Hey I got a new (insert cool car here), want me to burn you a copy?" I might think about it.
Parent
Re: (Score:3, Interesting)
That's so sad but so true. I guess the truth is I don't listen to mainstream music anymore. It's kinda something I don't want anything to do with and the greedy record companies are the reason.
I'm in a similar boat. My tastes were already leading me away from the major labels years ago, and a year or so ago I decided that my principles were demanding a complete halt to RIAA-member produced media. With the help of RIAA Radar [riaaradar.com], as well as just plain payin' attention, I've been able to make sure that anything
Re:Killing music for everyone (Score:5, Insightful)
I don't have any problem with buying music straight from the artist, and have done so when one catches my ear to the point that I wish to own a copy of their music. And when I do that, the artist gets paid in full for the fruit of their labours (less whatever they paid some private production studio).
However, it distresses me to buy the same product from an RIAA affiliate, because in that case, the artist gets reamed up the ass -- usually they wind up not even owning their own work, and are paid very little (or sometimes not at all) relative to the production/distribution company's profits.
http://www.negativland.com/albini.html [negativland.com]
Parent
Re:Killing music for everyone (Score:4, Insightful)
I dont own any of the code I write at my day job and I certianly dont get recurring royalties from it.
Yeah but you get a salary. They don't.
Slight difference.
Parent
Re:Killing music for everyone (Score:4, Interesting)
Bzzzzt - wrong answer.
You are using the word "album", but what you really mean is "music". And in the natural order of things there is simply no way to "sell" music - once it's sung once, anyone with a good memory can sing it again. Sure, you can charge for performances, and you can charge for the physical media, but the idea that you can charge for what is essentially a thought or an idea is a wholly artificial construct.
Copyright law was supposed to be an enormous social contract - the people, in the form of the Government, promised not to copy an artists work for a limited period of time, after which the work reverts back to it's natural state - which is to say, free of all legal encumbrance.
IP companies have perverted this process, starting with the Berne convention (I'm looking at you, Europe) to where creative works NEVER enter the public domain. They did this by legal encumbrances of the physical media involved. But now throw in a new wrinkle - it is possible to transmit the idea or though as information itself, with no media. So teh IP companies now are trying to regulate disembodied information, which is proving to be impossible.
I especially love your #3: "Record labels distribute and advertise your music so that you can make a living off of it." Are you serious? They distribute your music so THEY can make a living, not the artist. Prior to the advent of copyright, artists made their living for thousands of years in the same way - pay for performance.
- Ogg is a particularly good cave painter. Ugh just finished a legendary hunt. So Ogg paints the tale on the wall, and Ugh gives him some food. END OF TRANSACTION.
- The Pope wants a mural on the ceiling of the Sistine Chapel. Michaelangelo paints it, and gets paid. END OF TRANSACTION.
- A balladeer sings his songs in a tavern. The tavern keeper comps his room, because people come to hear the music. The drunks throw change in his hat. END OF TRANSACTION.
Is file sharing illegal? I believe it is.
Are most file sharers doing it because they are cheap and not out of civil disobedience? Absolutely.
But neither of those facts takes away from the reality that copyright, as we know it, is dying.
Parent
Re:Killing music for everyone (Score:5, Interesting)
1.) No one is obliged to buy an item that is overpriced. In fact, an underground economy cannot exist without either rationing or artificially high price floors. Since we don't have rationing in this case, it follows that the price of music media is too high given the current market. If you really want to make a sale, remember the adage: "If a customer wants to give you money, you let them." Customers have spoken with their wallets and said, "Let us download good, DRM-free content." The RIAA has enforced the media industries' stance that such sales will be considered piracy. But the term "piracy" has lost it historical meaning, since now it is no longer the case that 1 pirate sale equals 1 lost sale in the legitimate market. Someone who downloaded the entire Beatles catalog will still buy paraphernalia. It does mean that the market has shifted such that a good song is now a vehicle for concert attendance, t-shirts, posters, etc., rather than a source of income in and of itself. This is a much better arrangement from the consumer's POV compared to 20 years ago, when it was likely that a $15 CD with 11 songs would contain 2 worth listening to. And in a market driven economy, what's good for the consumer generally wins out in the end.
2.) If humans want to make a profit, they have to make a product that others want to buy at prices that reflect the current market. If I choose to sell a decent graphic novel of my own creation for $100 per issue, I shouldn't be surprised when I find it for free on the Internet. $100 is too high for a graphic novel by any stretch, and I didn't offer it in the media my customers' wanted. The tack you would seem to advocate is to sue my customers because they've broken the law. True, but if I want to stay in business, it might not hurt to try offering the issues for free on the net and then selling paper editions: regular for $10, deluxe for $100. The market will then dictate what to do next. Humans tend to upgrade their stuff based on their incomes, be it better editions, DVD's, or concert attendance of their favorite artists, so with my model, good content will still generate a profit.
3.) Content creators are not owed a profit by their customers or by their management. They have to earn it based on what they have to offer and what the public is willing to pay for. Offer what the customer wants at a price the market reflects, and profit generally occurs. Doing otherwise, especially suing customers, shows short-sightedness, greed, and egotism.
It comes down to this: do you want to make a profit in this market or not? This market is not the market of 20 years ago, and no amount of name-calling or foot-stamping will change that. It's no longer possible to have a millionaire lifestyle through royalties off of one song written in 1960 [wikipedia.org]. If your customers want music for free, remember that they buy tickets, t-shirts, coffee mugs, posters, and subscribe to a web site in order to be the first to download the latest album.
Parent
Re:Killing music for everyone (Score:5, Insightful)
When am I going to get a (-1 Astroturf) moderation choice?
Defending the RIAA is worse than working directly for them. At least their employees have big piles of money to sate their burning consciences.
I'm all for artists making money for their work. This is one of the best reasons to be anti-RIAA. Besides raping record sales for the majority of the profits, they are pursuing a broken business model by throwing more of their members' money at it. DRM, lawsuits, propaganda, legislation, buying politicians: these are the death knells of a business. See: SCO.
Parent
$6050 paid over 55 months. (Score:5, Informative)
That about sums it up. After a lengthy court battle the RIAA settled for what I'd guess is a few hours of lawyers fees. Essentially the RIAA figured they couldn't win and decided to pack it up in fear the arguments against them would be ruled valid.
Very, very telling (Score:5, Insightful)
This experience has left such a bad taste in my mouth that I wanted to swear off music.
indeed, these rascals are alienating untold numbers of youth from music. just for a few dollars more, they are not only killing an industry, but an ART. no exaggeration - dont just think about the actual number sued - think about how many people, friends, relatives, colleagues and alike, got adversely affected by what their acquaintance went through. and they are doing it for what ? to sustain an outdated business model.
its a crime against humanity, civilization. whereas today's courts are too 'old' to understand the matter in its core, future generations of judges and lawmakers wont be as such. woe to the people of young generations who join riaa in their shitty crusade by working for them or the media cartels - for they will still be alive when future generations take the matter into hand, whereas the bosses who used them to their own selfish ends will be long dead.
Re:Very, very telling (Score:5, Insightful)
Thats a very dramatic rant, but I really doubt US courts and the RIAA is going to end 50,000 years of the creation of music at the hand of human beings.
Although I see where you were going with it -- I'd have written almost the exact same thing on here, as it is a sure-fire way to get modded up.
Parent
Pirated from Salon, for your elucidation (Score:5, Informative)
Courtney Love
June 14, 2000
Today I want to talk about piracy and music. What is piracy? Piracy is the act of stealing an artist's work without any intention of paying for it. I'm not talking about Napster-type software.
I'm talking about major label recording contracts.
I want to start with a story about rock bands and record companies, and do some recording-contract math:
This story is about a bidding-war band that gets a huge deal with a 20 percent royalty rate and a million-dollar advance. (No bidding-war band ever got a 20 percent royalty, but whatever.) This is my "funny" math based on some reality and I just want to qualify it by saying I'm positive it's better math than what Edgar Bronfman Jr. [the president and CEO of Seagram, which owns Polygram] would provide.
What happens to that million dollars?
They spend half a million to record their album. That leaves the band with $500,000. They pay $100,000 to their manager for 20 percent commission. They pay $25,000 each to their lawyer and business manager.
That leaves $350,000 for the four band members to split. After $170,000 in taxes, there's $180,000 left. That comes out to $45,000 per person.
That's $45,000 to live on for a year until the record gets released.
The record is a big hit and sells a million copies. (How a bidding-war band sells a million copies of its debut record is another rant entirely, but it's based on any basic civics-class knowledge that any of us have about cartels. Put simply, the antitrust laws in this country are basically a joke, protecting us just enough to not have to re-name our park service the Phillip Morris National Park Service.)
So, this band releases two singles and makes two videos. The two videos cost a million dollars to make and 50 percent of the video production costs are recouped out of the band's royalties.
The band gets $200,000 in tour support, which is 100 percent recoupable.
The record company spends $300,000 on independent radio promotion. You have to pay independent promotion to get your song on the radio; independent promotion is a system where the record companies use middlemen so they can pretend not to know that radio stations -- the unified broadcast system -- are getting paid to play their records.
All of those independent promotion costs are charged to the band.
Since the original million-dollar advance is also recoupable, the band owes $2 million to the record company.
If all of the million records are sold at full price with no discounts or record clubs, the band earns $2 million in royalties, since their 20 percent royalty works out to $2 a record.
Two million dollars in royalties minus $2 million in recoupable expenses equals ... zero!
How much does the record company make?
They grossed $11 million.
It costs $500,000 to manufacture the CDs and they advanced the band $1 million. Plus there were $1 million in video costs, $300,000 in radio promotion and $200,000 in tour support.
The company also paid $750,000 in music publishing royalties.
They spent $2.2 million on marketing. That's mostly retail advertising, but marketing also pays for those huge posters of Marilyn Manson in Times Square and the street scouts who drive around in vans handing out black Korn T-shirts and backwards baseball caps. Not to mention trips to Scores and cash for tips for all and sundry.
Add it up and the record company has spent about $4.4 million.
So their profit is $6.6 million; the band may as well be working at a 7-Eleven.
Of course, they had fun. Hearing yourself on the radio, selling records, getting new fans and being on TV is great, but now the band doesn't have enough money to pay the rent and nobody has any credit.
Worst of all, after all this, the band owns none of its work ... they can pay the mortgage forever but they'll never own the house. Like I said: Sharecropping. Our media says, "Boo hoo, poor pop stars, they had a
Eight years later, the labels are still in control (Score:5, Informative)
The most interesting aspect of re-reading Love's rant from the year 2000 is how open she was to putting a torch to the whole, stinkin' mess, and trying something genuinely, radically new.
She was way ahead of the curve -- too far ahead.
Eight years on, the labels are still in control, and the lack of quality and innovation is worse than ever, with no end in sight. From a business standpoint, one has to admit that the labels have done a terrible job dealing with the internet. I can't think of any other business that has failed so spectacularly. EVERBODY has learned how to make money using the internet. There are WHOLE SECTORS of the economy that have been invented, grown up, and are making real money based on the internet.
But from the music distributors, we get lawsuits and six radio stations all playing the same classic rock playlist.
It's just sad and pathetic, really. It's clear they have no earthly idea how to make a buck.
When I read this rant before, I was saying to myself, "yeah, right -- in your dreams". Now, I'm not so sure. I think I may be ready now.
Parent
Re: (Score:3, Insightful)
If the RIAA was conducting this campaign with so much as a shred of ethics and decency, I could go with it as they are, in one of thinking, attempting to defend their rights as redistribution is not a right you gain from purchase
Re:Files and milk crates. (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
She was characterizing the RIAA's lawsuit as being "just because" she had music on her computer. I don't disagree with that characterization, but it is hardly flamebait to do so.
Re:Oh well. (Score:5, Informative)
I bet the whole court thing isn't easy at all, all the stress over something that's gotten so ridiculous. I hope she finds some relief in the settlement, but it would have been really nice to have another person fighting back. She could'a been'a contenda'!
She was more than a contender; she actually won the fight [blogspot.com]. She just decided to pass on a rematch, but in my book she goes out a champion.
Parent
Re:Welcome to the Music Industry (Score:5, Insightful)
Where "ripping off artists to make sure they don't get paid is okay" as long as you've got them to sign some kind of contract, however convoluted, because of course all musicians are expert contract lawyers AND are negotiating on a level playing field.
Get this through your head: there are very few good guys.
Napster were bad guys (and the fact that there's still a "Napster" in any form gives me a bad taste in my mouth).
The labels are the bad guys.
People sourcing ripped torrents are the bad guys.
The RIAA are the bad guys.
People illegally posting copyrighted binaries to Usenet are the bad guys.
The judges who let the RIAA get away with it are the bad guys.
Psystar are bad guys.
Pointing out that one set of bad guys are bad guys doesn't mean that another set of bad guys are good guys.
Parent
Re: (Score:3, Interesting)
You earned it.
You really should make some effort to understand how the record labels rip off everyone involved with them before you make such commentary.
Here's a quote from Janis Ian:
The NARAS people were a bit more pushy. They told me downloads were "destroying sales", "ruining the music industry", and "costing you money". Costing me money? I don't pretend to be an expert on intellectual property law, but I do know one thing. If a music industry executive claims I should agree
Re:Welcome to Slashdot (Score:5, Informative)
Can you please cite this whole "0.02" cents thing? I see tons of it around but no one ever sources it.
It's in the recording agreements that there is a royalty, it might be 10%, 12%, something like that. But then the record company takes out huge expenses, many of them fictional expenses that are not actually incurred, such as 25% 'packaging' costs and the like. Then when it comes time to account for the royalties they frequently report much less than what is actually owed. Then the artist has to hire a royalty audit accountant, and sometimes a lawyer, in order to collect a fraction of what is owed as a "settlement". So I don't know if the real number is 2 cents, or something more or less than that. But every entertainment lawyer knows that it's a very tiny amount of money.
Parent
Re:$110 per month for 24 months (Score:5, Informative)
And if the mail runs late or she misses a payment or she bounces a check, she's on the hook for double (over $12,000.00) the settlement amount
Minus any payments received. And only if they give her written notice, and she fails to cure.
Parent
Re: (Score:3, Informative)
For NYCL; Okay - so I am bit slow on legalese - so forgive the grade-school level question. She took up the settlement (can't blame her - the soap opera has to be stressful) however, all the arguments and defenses are laid out that any other person targeted by the RIAA could use these as the blueprint for their defense, and have a judge rule on them? (correct?)
Correct.
Hopefully they will.
Re:This is a capitulation (Score:4, Insightful)
Well, I'm very glad you're offering to handle her case and pay the ongoing lawyer's fees.
Oh wait, you aren't? Then STFU.
Parent
Re:NYCL's Comments (Score:5, Informative)
My question is, I've read the settlement, and it seems pretty "boilerplate", but What does NYCL, (If he can talk about it) think of a) the terms of the settlement, and b) the fact that it was settled at all?
Contrary to what we see in television and movies, it is very rare for cases to go to trial, and the vast majority of cases are settled. The system would break down completely were that not the case.
We were entering a new phase of the litigation, which would have taken a lot of time and energy, and would have broken a lot of new ground, so it would have been a major decision on each party's part to jump into that second phase. Also, the Judge had ordered the parties to go to a settlement conference, thus indicating that the Judge himself felt that the case should be settled, or at least that the parties should make a major effort in that regard. So it was a very logical juncture at which to settle the case.
As to the terms of the settlement they are what they are, and at least this time you can see the actual settlement terms and form your own opinion.
As to my opinion, I guess I'm pretty predictable. You know what I think of the RIAA, and of their legal positions, and paying them anything, or agreeing to any of their overbroad injunctive provisions, is always bothersome to me. I look on any settlement with them as unfair, because these are lawsuits which should never have been brought in the first place, and they deal with a "micro-payment" copyright infringement, where in the real world the record company is out of pocket around 35 cents per song file. If the RIAA were relegated to collecting its actual damages, none of these cases would ever have been brought, as in most of the cases the actual provable damages are in the neighborhood of $3.00 US (or 2 Euros).
So I am predictably (a) happy for my client that she can put the litigation behind her, (b) disappointed that I didn't get to litigate the affirmative defenses, and (c) not satisfied with the terms, since I believe all of these settlements in the thousands of dollars are wrong.
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