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RIAA 'Elektra V. Barker' Case Is Settled 306

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.'"
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RIAA 'Elektra V. Barker' Case Is Settled

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  • Settlement (Score:3, Funny)

    by DoofusOfDeath ( 636671 ) on Monday August 18, 2008 @03:35PM (#24649469)

    RIAA 'Elektra V. Barker' Case Is Settled

    I guess her lawyer's barker was worse than her biter?

    • Re:Settlement (Score:5, Insightful)

      by l2718 ( 514756 ) on Monday August 18, 2008 @04:01PM (#24649825)

      I guess her lawyer's barker was worse than her biter?

      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.

  • So... (Score:5, Funny)

    by hidannik ( 1085061 ) on Monday August 18, 2008 @03:35PM (#24649471) Homepage

    Barker: We had milk crates filled with albums....
    Elektra: So what have you done for us lately?

    Hans Dannik

    • Re:So... (Score:5, Funny)

      by multisync ( 218450 ) * on Monday August 18, 2008 @03:38PM (#24649527) Journal

      We had milk crates filled with albums....

      She'd better watch out, or the milk company will be after her for stealing their crates.

      • Re:So... (Score:5, Funny)

        by croddy ( 659025 ) * on Monday August 18, 2008 @03:42PM (#24649579)

        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.

        • Re: (Score:3, Funny)

          by dosymedia ( 1247898 )
          Yeah, but my mp3s fall through the holes if I don't put down a layer of cardboard on the bottom of the crate.
  • So... (Score:5, Insightful)

    by Lookin4Trouble ( 1112649 ) on Monday August 18, 2008 @03:35PM (#24649475)
    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?
    • Re:So... (Score:5, Insightful)

      by kannibal_klown ( 531544 ) on Monday August 18, 2008 @03:46PM (#24649621)

      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.

      • Re:So... (Score:5, Insightful)

        by NewYorkCountryLawyer ( 912032 ) * <{ray} {at} {beckermanlegal.com}> on Monday August 18, 2008 @03:53PM (#24649707) Homepage Journal

        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.

      • Life isn't about money or lawsuits or even sticking it to greedy cowards. Life is about living.

        Good point! Elektra was helping Barker experience the joy of giving! They rock!

      • Re:So... (Score:5, Insightful)

        by suck_burners_rice ( 1258684 ) on Monday August 18, 2008 @04:28PM (#24650191)
        The truly sad part of all this is the proof, once again, that if you're a big and resourceful organization, you can win any lawsuit, deserved or not, simply by wearing out the other party. Drag the case on forever. File motion after motion. Sooner or later, you'll win because the other party will run out of resources, or will settle with you just to cut their losses and get the damn thing over with. This is not justice. This is an insult to innocent people everywhere who can be victimized by other people who are using the law as a tool for gain at the expense, pain, and suffering of others. I think there needs to be a much bigger fight, where thousands (if not millions) of people will contribute to an organization that will fight to get the terms of copyright reduced to their original values and to get other ridiculous laws like the DMCA off the books. There is no reason in the world that copyrights should last as long as they do these days, nor is there any reason that the law should heavily favor copyright holders while neglecting the rights of everyone else. I say, if it's over 20 years old, it belongs in the public domain. Furthermore, I think a fund should be set up to collect donations for the victim of this case.
    • Re:So... (Score:5, Informative)

      by NewYorkCountryLawyer ( 912032 ) * <{ray} {at} {beckermanlegal.com}> on Monday August 18, 2008 @03:48PM (#24649655) Homepage Journal

      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.

  • Milk Crates (Score:5, Interesting)

    by Some guy named Chris ( 9720 ) on Monday August 18, 2008 @03:36PM (#24649493) Journal
    The funny thing is that the milk crates were almost certainly stolen and illegal for them to have as well.
    • by snarfies ( 115214 ) on Monday August 18, 2008 @03:40PM (#24649543) Homepage

      In Canada, music comes in milk crates.

      • Re: (Score:2, Funny)

        by Anonymous Coward

        In Canada, music comes in milk crates.

        In Soviet Canuckistan, milk comes in music crates!

      • Re: (Score:3, Informative)

        by BrainInAJar ( 584756 )
        and milk comes in bags ( it does. )
        • by gnick ( 1211984 ) on Monday August 18, 2008 @04:14PM (#24650019) Homepage

          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!)

        • Re: (Score:3, Informative)

          by Miseph ( 979059 )

          It also comes in boxes. And if you're REALLY lucky and in a country where refrigeration is just becoming widespread so theequipment is still somewhat expensive and difficult to find, it even sits out on a shelf.

          It honestly took me three days to figure out where the fuck Costa Rican grocery stores keep the milk.

      • by be951 ( 772934 ) on Monday August 18, 2008 @04:16PM (#24650049)

        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.

    • by tgd ( 2822 )

      Get back into court, we now have clear evidence of a history of blatant defiance of property ownership and flaunting her stolen goods!

    • Yeah. All the milk crates I've ever seen said that they were the property of the milk company and should be returned to them.

  • Milk Crates (Score:2, Funny)

    by Anonymous Coward

    I bet she stole the milk crates too.

  • by Anonymous Coward on Monday August 18, 2008 @03:38PM (#24649521)

    "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.

    • by AP31R0N ( 723649 ) on Monday August 18, 2008 @03:51PM (#24649693)

      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]

    • The last Compact Disc I bought from a music store was in (if I remember correctly) 1984. That was when I started getting interested in the media industry, and began to understand what a bunch of really bad people run it.

      I have bought music online, sure, but never from any source affiliated with the major labels. Sometimes I'll pick up a used CD or two, but I figure somebody else already paid the RIAA tax on it, and if nothing else the labels aren't getting any more money. I don't agree with their busines
      • The last Compact Disc I bought from a music store was in (if I remember correctly) 1984. That was when I started getting interested in the media industry, and began to understand what a bunch of really bad people run it.

        You may not be remembering correctly. Maybe you meant 1994? The first CD player came out in the very end of 1982 (October) - the Sony CDP-101, and (according to sources online) started selling in 1983. There weren't many CDs to buy back in 1984.

    • by aztracker1 ( 702135 ) on Monday August 18, 2008 @04:05PM (#24649905) Homepage
      Honestly, when Napster v1 went down, I really stopped buying music for the most part... before then, I bought probably 2-3 CDs a week. since, I've bought maybe 5-6 now... Why, I was able to find new music based on what was available from those that had music I liked... if I liked something, I bought it... Since then, I've tried last.fm and a few other sites/services... it just seems to be like a lot of the earlier systems worked better for finding stuff I'd like.

      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 ... I just don't get the logic behind a lot of this.. the RIAA and MPAA both...

      "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.
    • Re: (Score:3, Interesting)

      by hiryuu ( 125210 )

      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

  • 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'!

    • Re:Oh well. (Score:5, Informative)

      by NewYorkCountryLawyer ( 912032 ) * <{ray} {at} {beckermanlegal.com}> on Monday August 18, 2008 @03:57PM (#24649751) Homepage Journal

      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.

      • Oh, good. I'm so happy and stuck in my little life that I'd be wrecked at the thought at something like this, I'm already in debt and I have student loans out. I don't think I could handle taking it to court.

        Of course, I don't share any music or movies, my wireless is secure, and I'm the only one who uses my computer.

  • Not a lot of money, but much better than wasting more time in court.
  • by Vellmont ( 569020 ) on Monday August 18, 2008 @03:43PM (#24649591) Homepage

    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)

    by unity100 ( 970058 ) on Monday August 18, 2008 @03:43PM (#24649593) Homepage Journal

    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.

    • by tgd ( 2822 ) on Monday August 18, 2008 @04:01PM (#24649833)

      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.

    • think about how many people, friends, relatives, colleagues and alike, got adversely affected by what their acquaintance went through.

      And then think about how many of them are actually going to stop consuming media as a result.

    • "rascals"?

      i mean.. the rest is all well and good.. but "rascals"?

      To adopt the jon stewart mindset... how was your service in the army of the potomac : )?

    • Re: (Score:3, Insightful)

      by R2.0 ( 532027 )

      "just for a few dollars more, they are not only killing an industry, but an ART."

      I actually think they are saving music as art. If the labels go away and we revert back to the previous system of patronage and pay-for-performance, a lot of the shitty "I wanna be a rock star for the groupies and blow" folks will go away. This will leave the people who simply MUST sing (or paint, or write) beacause it is something they are driven to do. Under teh influence of ACTUAL human creativity, I think the arts will en

  • how did this work? Did the plaintiffs offer a settlement, did Ms. Barker ask for one, and in either case what was the reasoning behind the decision to settle?
  • by barfy ( 256323 )

    This isn't a settlement, this looks like she paid $750 x 8 for the songs.

    It looks like she created a lot of noise and fury over nothing, and probably set back whatever anti-RIAA cause is out there back. This will do nothing but encourage the RIAA to continue with their tactics.

  • This experience has left such a bad taste in my mouth that I wanted to swear off music.

    RIAA represents only a fraction of recorded music. Depending on where you live, you might even have an opportunity several times per week, to hear it live -- and buy a CD directly from the band.

  • I read the pdf of the settlement, and it says that the defendant(baker) has to pay the plantiff(riaa) $6050 in 55 monthly installments.. and that is it!!!
    Am I missing something here?
    • by mea37 ( 1201159 )

      Ok, I'll bite... what more were you looking for?

      That's what a settlement is; it sets terms for ending the litigation, in this case (and I think pretty typically) including a negotiated monetary award and an injunction...

      What is it you think is missing?

  • because I didn't know Carmen Electra recorded any music, let alone sued Bob Barker for copyright infringement.
    [/sarcasm]
  • 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?) Could then someone include her settlement in a further class action of some form, and get it overturned ? If so, this would be more of a '
    • 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: (Score:3, Informative)

        by Reziac ( 43301 ) *

        Ah, so the REAL win here is that the next incident won't have to reinvent the case from scratch, but instead can build directly on all the records from this case.

        Should save both time and money for the next victim who fights the RIAA, and hopefully make it that much easier to progress to the next step after this one.

  • Man, I can't wait for the CIAA (Cow Industry Association of America) to come after her as well.

    I mean, if a 99cent song is worth $150k in damages, think how much an actual milk crate is worth!
  • by AP31R0N ( 723649 ) on Monday August 18, 2008 @04:23PM (#24650121)

    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

    • Re: (Score:3, Interesting)

      by east coast ( 590680 )
      That's a funny spiel given that she now records for a label that is distributed by one of the "big four". I guess that says a lot about her integrity and commitment to her supposed cause. She hates the industry so much that she's giving it more money for doing even less for her than what they did before when she called it "piracy".
    • by davide marney ( 231845 ) on Monday August 18, 2008 @06:34PM (#24651577) Journal

      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.

    • Sorry Courtney (Score:3, Interesting)

      $45K/year is about what the average household income is in the U.S. Now substitute venture capitalist for recording company in the article. What does the average guy who started a software company get? About the same deal as this mythical band got. The band didn't have to take the contract. Neither does the software engineer. Both can try to make it on their own by growing their customer base organically. But if you decide to take the man's money in order to shortcut the process, why do you think that you a
  • Man, she's just asking for it now. Next thing you know she'll say she has her mail in USPS mail trays right by her front door.

BLISS is ignorance.

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