Judge Says RIAA "Disingenuous," Decision Stands 195
NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
Hey, RIAA (Score:5, Insightful)
Sadly.... (Score:5, Insightful)
Re:Hey, RIAA (Score:5, Insightful)
Re:Sadly.... (Score:5, Insightful)
I would not be so sure about that. If this decision withstands the test of time, many lawyers will be willing to take on at least some of the cases, since the salary will now come out of **AA's pockets. The obvious outcome will be that more people will engage in illegal filesharing (seeing that it is possible to go to court and win), while **IA will have to pay considerably more for its "war on piracy".
Re:Sadly.... (Score:5, Insightful)
Re:Sadly.... (Score:5, Insightful)
It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales. If this goes on, we might see the destruction of copyrighting sequences of notes and see entire new genre's of music like blues which shamelessly infringe on the same set of riffs for different songs.
A unique combination of generations of producers, lawyers, organized criminals, and the congressmen and senators that they bought have worked hard to create a virtual monopoly. Where is our respect for all that work?
Re:Question (Score:2, Insightful)
And of course revealing how much they spend on lawsuits might make people even more likely to boycott them, not wanting to finance extortion but rather the artists. Or maybe they'd just be less guilty about stealing music.
Re:Sadly.... (Score:5, Insightful)
Re:Sadly.... (Score:3, Insightful)
Show me one example of a record company holding a gun to a band member's head to make them sign a contract.
Nope?
Then the artists have nothing to complain about. They were offered a contract and they took it, if they didn't read it properly, or better yet have it read for them by someone competent, it's entirely their own fault. The work I do for my employer generates a lot more income for them than they pay me - but that's exactly how companies generate profit for their shareholders. I wonder what would happen if Linus turned around tomorrow and said that he'd changed his mind about using the GPL for Linux and would actually like $1 a copy from everyone currently using it? The collective "WTF??!?? STFU!!" would be deafening. He chose how to license his work, and just like the anecdotal starving musician he's stuck with that decision.
Re:Sadly.... (Score:3, Insightful)
You could make an anti-trust argument... that the music publishers have an unfair advantage over musicians due to collusion and unfair business practices.
Otherwise, its just taking advantage of the stupid, which I believe is still legal...
Re:Why don't "we the people" (Score:4, Insightful)
In older times, this was called a union. Its kindof a bad word today, but in order for artists to get around the RIAA and Tickemaster and any new incarnation of the same, a union may actually be something that can protect their rights.
Re:Sadly.... (Score:4, Insightful)
Re:Sadly.... (Score:5, Insightful)
If you are trying to make a living by writing and selling music, then you have essentially three choices--market it on your own, make it free and try to make money touring (if you can get noticed); or you might be able to secure an independent label contract, market it essentially on your own, and hope to make money touring; or, if you get lucky, you can get noticed, sign a major label (read: RIAA) contract, and be stuck with whatever terms they offer, because while some people are good enough to have multiple labels clamoring over their stuff, this is unusual. Instead most bands are lucky to have any label be willing to sign them and there are always others willing to take your place.
The result is that RIAA labels, in effect, have huge amounts of buying power when it comes to negotiating artist contracts. These contracts are typically draconian in nature, and leave most bands actually losing money for a while, although the label is raking in lots of cash.
Now, if you go with an independent label, you just have to HOPE that you get famous and make money. The same is true of no label deals, and in all cases you are expected to tour relentlessly and hope for the best. NPR did a fluff piece on the Dresden Dolls a while back that talks about how the band was making less money than the people they had to hire to make the tour work! Sad.
The point is that being an artist isn't easy, and the RIAA does NOTHING to make it easier for the vast majority. Only a very few actually get deals that reward them in line with the amount of CDs they sell relative to the amount of work it requires from the artist.
I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed.
Hurrah! Perhaps the tide will turn! (Score:4, Insightful)
Re:Sadly.... (Score:5, Insightful)
I think you might have missed an important sentence in the GP post... the one that explains how the corporations can hold a gun to a band member's head. I'll point it out: (emphasis mine)
In the days before the internet, the record labels made life for independent artists as hard as they could, to force them into restrictive contracts. Good luck trying to get any air time on a significant radio station as an independent artist. And the strange thing about bands, is that while you can make money touring, you first have to gain a strong following. To do that, people have to hear you. If you can't get any air time the only way to do that is tour with other bands. But chances are, unless you're very original AND very good, most people will not remember your material nearly as well as whatever song that one of the labels has playing on the radio every 20 minutes all day long. NOT accepting a contract with a record label was a death knell for almost any band. Of course, there is always the possibility of arguing for a better contract, but it's not likely to be improved much, unless you really are very good and very original.
Of course, now with the internet their efforts to lock up the major distribution channels are starting to fail, so they are flailing wildly in an attempt to gain control over this new and unexpected threat. So far, they seem to be having some trouble, and I hope it continues that way.
Try Thinking Next Time. (Score:5, Insightful)
You don't just count the people being sued, you have to also consider the great many Slashdotters who believe that any expectation that you pay anything at all for any media that can be digitized equates to misery.
It's more like the 125 million US citizens with an ISP connection that might be wrongly accused and threatened with the loss of all their life savings.
That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
Yes, I'd like my music to play on restrictionless devices. If you like having to beg permission to play and copy your files or keep running your OS. I'm not sure why anyone would prefer that but to each his own. Perhaps you would like one of Mr. Gates' bed o'nails and pillow full-o-thorns to sleep on?
Bands make money from touring. ... blah blah blah
You don't have a real job do you?
Re:Sadly.... (Score:4, Insightful)
A few years ago I saw an estimate that around 100 CDs were being created per day, every day. It seems like a fairly conservative estimate. Assuming that's in the ballpark, in the time it takes you to listen to one CD, around 3 others will have been created. And you can't listen to music 24/7.
Distribution power has tremendous influence on what music will sell. Great distribution power --physical sales and the airplay, good PR, and buzz needed to push those CDs to the register-- requires a lot of capital. It is the exception for heavily marketed product to completely flop: even the worst will go gold if it's crammed down enough throats (thanks, Clear Channel!) I'm not talking postering, I'm talking about pay for play.
The reason you buy bands --the reason you may even identify with them-- is because you found mention of them in the first place. In a world where you're exposed to thousands of advertisements every day, it is far more likely that you came across them in an ad of some sort; or at least the person who told you about them did.
So your expectation for all your money to go to the artist, at least in the case of the RIAA label bands, is misplaced. Don't fool yourself -- most of the capital that gave them the huge sales did not, in fact, come from their musical efforts. They simply have the gratification of being the faces of the advertising campaign that is their latest CD.
Re:Sadly.... (Score:3, Insightful)
I don't see how these are bad deals. Going by the deal Negativland posted on their web site as proof of pure evil, the record label takes a bet on an unproven band, distributes their sound through channels that the band could never develop on their own (pre-internet), pays all of the band's production and travel expenses, does some promotion, etc. All the band has to do is show up.
If the band sucks ass, the record label writes off the loss and the band never says a word on how unfair it was that they didn't get to participate in the losses. If the band does well, while it's true the record label enjoys most of the profits (since they bore most of the risk), the band is the one that has proven themselves and can set the terms when their contract comes up for renewal. The record label is just a commodity at that point and the band can shop around for better deals.
(And they really have no one to blame but themselves if they can't see down the line and sign obscenely long contracts with unfavorable terms.)
Re:Sadly.... (Score:4, Insightful)
The situation you describe also applies very well to writing software, building houses, selling ice cream, and innumerable other professions. Try to go it alone, work with a small company, or work with a big company. Each have reasons that make them good, and bad. This is part of doing business in modern society, no matter what your business is. Why would ye olde Invisible Hand make an exception for the music industry?
"I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed."
Why would you expect that? When you put together the end-to-end costs of recording, producing, marketing and selling a CD, the studio time (including the paying of the session musicians) and the royalties (in which the songwriters, composers, and featured performers are paid) are but a small percentage of the cost.
You probably already know that retail margins are anywhere from 10% (Amazon) to 50% and more (Best Buy, etc.) across all categories. Music is no different. If this is truly pissing you off, how do you cope with the anger of paying 10% - 50% markup for everything you buy?
Re:Sadly.... (Score:5, Insightful)
The fact that people still sign contracts with these companies is very suggestive that perhaps they feel that there are no alternatives. It suggests that people are resigned to getting screwed over, not necessarily on the contracts themselves, but on how closely those contracts are followed. It suggests that people feel like there is no alternative but to idly sit by and watch the law be broken. I say that this is a very bad thing indeed.
Re:Sadly.... (Score:3, Insightful)
"91% >> 50% (and 9% to the artist is a "very good deal"!)"
Huh? I was referring to retail margins -- the markup that the retailer charges. The GPP believes that the retailers should be paid less than the artists. All fine and good, but manufacturers -- no matter what business they are in -- don't get to set retail margins.
I sell computer peripherals. Amazon makes about 15 points on my products; Best Buy makes about 50 points. This is out of my control, and has nothing to do with the salary of anybody who touches the products from start to finish -- including mine. Whether I make 0.01% of the retail price, or 1%, or 0% or 100%, Amazon and Best Buy will add whatever markup they please. Amazon and Best Buy will generally make more than the salary of the highest-paid employee who touches the product. This is a sad fact of the retail industry as a whole, but it angers the GPP that the music industry doesn't work differently.
By the way, I should point out another misconception. If, say, in selling computer peripherals my salary averages 9% of the sell-in price, it's not accurate to say that my employer gets to keep the other 91%. The rest goes to all the other innumerable costs of sale... usually, it's ultimately somebody else's salary. Getting back to the record industry... Warner Music managed to keep about 3% of their income last year. The other 97% all went to other people. If their average artist collected even a 4% royalty, they did better than the record company.
""the end-to-end costs of recording, producing, marketing and selling a CD" ... are mostly decreasing. Why are the labels not then increasing what they pay to the artists?"
Ugg... I wish that this were true! Hard good supply chain costs have gone up a lot in the past few years, due to rising fuel prices. There are new and exciting ways to market products, such as the Internet, but the salaries you pay to the people who do the marketing sure aren't going down. Believe me, I really, really wish you were right.
Either way, CD prices are in freefall (something like a $5 drop in average retail price over the past few years). As for why record labels aren't paying artists more out of the goodness of their little hearts... they don't have to! They're not looking out for the artists' best interests. There's always more people looking for a recording contract than can get one, so the record companies have little motivation to raise their royalty rates.
If this doesn't make sense to you, imagine yourself in any business where (like the record industry) the production costs are going up, retail prices are being forced down, and there are people waiting in line to come work for you. Paying your employees or contractors more wouldn't be an obvious first priority.
"Questionable Motives?" (Score:3, Insightful)
1. Ever-increasing profits at all costs.
2. Protection of their predatory, exploitative business model at all costs.
3. Complete market domination for 1) and 2) above.
4. Total control over the distribution of music.