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.'"
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.
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.
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.
Re: (Score:3, Funny)
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.
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.
Re:So... (Score:5, Funny)
Please quote responsibly.
Re:So... (Score:4, Funny)
There. Happy now?
Re: (Score:2)
Good point! Elektra was helping Barker experience the joy of giving! They rock!
Re:So... (Score:5, Insightful)
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.
Re:So... (Score:5, Insightful)
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).
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.
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.
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.
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.
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.
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.
Milk Crates (Score:5, Interesting)
Re:Milk Crates (Score:5, Funny)
In Canada, music comes in milk crates.
Re: (Score:2, Funny)
In Soviet Canuckistan, milk comes in music crates!
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!)
Re: (Score:3, Informative)
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.
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.
Wait!!! (Score:2)
Get back into court, we now have clear evidence of a history of blatant defiance of property ownership and flaunting her stolen goods!
Re: (Score:2)
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)
I bet she stole the milk crates too.
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]
Re: (Score:3, Funny)
Kid Rock is dead? Please tell me Eminem was involved and it was a murder suicide.
Re: (Score:2)
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
Re: (Score:2)
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.
Re: (Score:3, Interesting)
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.
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]
Re: (Score:3, Insightful)
I dont own any of the code I write at my day job and I certianly dont get recurring royalties from it.
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.
Re: (Score:3, Insightful)
I guess you're just trolling, but OK, I'll bite:
In economics language, a "commodity" is a product put up for sale to make a living. Usually, the word is reserved for products that are totally exchangeable, without different categories which could have different prices. In this respect, a music album would not be a commodity, but an argument could be made that contemporary popular music is m
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.
Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
I think it's a problem bigger than that. People want to make money forever off work they've done once. It's not really any different than investments. It's the idea of "letting your money work for you". It's all only possible through bad laws and economic practices.
Indeed, many record companies probably only consider their artists to be investments. And so, the shareholders of the companies profit while they sit back and (probably) just enjoy the good life.
Really, they're the ones we should be angry wi
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.
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.
Oh well. (Score:2)
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)
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.
Re: (Score:2)
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.
$110 per month for 24 months (Score:2)
Re: (Score:2, Interesting)
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.
Re: (Score:3, Interesting)
I had a student loan a while back - one of those "We'll give you a real awesome interest rate, but if you're ever late on a payment, we'll jack it up hugely! Also, no payments until a year after you get out of school!" So I did some school and pretty much forgot about the payment.
Guess whether they gave me any warning that my payments were about to start. Nope! First thing I got from them in two years was a letter saying "Well, you were late on this payment - guess your interest rates triple now! Sucks to b
$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.
Re: (Score:3, Informative)
With all this talk of passing the torch, whose case is the one we should now be watching?
You never know, sometimes they sneak up on you, but some that bear watching are
UMG v. Lindor
Lava v. Amurao
Capitol v. Thomas
Andersen v. Atlantic
Atlantic v. Boyer
Arista v. Does 1-17
Atlantic v. Does 1-27
Elektra v. Doe and
Arista v. Does 1-21 (case files here [blogspot.com]),
but there are others too. Too many to mention.
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.
Re: (Score:2)
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.
Re: (Score:2)
"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)
"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
My question is ... (Score:2)
This is a capitulation (Score:2, Informative)
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.
Re: (Score:2)
Heaven forbid you should ever walk a mile in her shoes ...oh, geez, I hope that wasn't too much to qualify as fair use...
'cause then you really might know what it's like to have to choose.
Re: (Score:2)
This isn't a settlement, this looks like she paid $750 x 8 for the songs.
A mutually-agreed-to set of actions that ends the lawsuit is indeed a settlement.
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.
It's about RIAA, not music (Score:2)
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.
Re: (Score:2)
Unfortunately, in some places, the local clubs mostly book the sort of music the RIAA has been spoon-feeding us for years. It's a vicious cycle: people buy the labels' music, causing clubs to play it, causing people to think that's the best music out there, and buying more focus-grouped music.
According to a musician friend of mine, the DC area is particularly bad at that. If you want better music, move to Detroit. But then you have to live in Detroit.
What kind of settlement is this? (Score:2)
Am I missing something here?
Re: (Score:2)
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?
I must live under a rock... (Score:2)
[/sarcasm]
Question about the settlement and public posting. (Score:2, Interesting)
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)
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.
she stole milk crates too?! (Score:2, Funny)
I mean, if a 99cent song is worth $150k in damages, think how much an actual milk crate is worth!
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
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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.
Sorry Courtney (Score:3, Interesting)
And she cops to Milk Crate Theft? (Score:2)
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Actually no she wasn't. There is a whole mess of a difference between copyright infringement and theft. The fact that you make such a claim shows you've bought what the RIAA has been saying all this time.
One is civil and the other is criminal. No threat of jail-time although you could argue threat of loss of life given how much it costs to defend yourself against a civil suit with such a large plaintiff.
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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
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Re:Files and milk crates. (Score:5, Insightful)
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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.
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5.) People attack a position without addressing its merits whatsoever.
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.
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People illegally posting copyrighted binaries to Usenet are the bad guys
im sorry, but that's just not so black and white unless you're a "law = morality" zealot.
Case and point: rifftrax.
This service is cheap, and is one of the few ways hollywood dreck is palatable.. and hilarious. There's just one problem.. the sync work, assuming you can do it yourself, tends to deflate the punchlines, and because of the DMCA and derivative work case law, the good Mr. Nelson cannot market pre-made dvd's. It is to the community's advantage to buy the trax off the site, but share the job of sy
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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
... scapegoat the RIAA ?? (Score:2)
In fact, evil [blogspot.com] (suing a woman with multiple sclerosis who didn't use a computer) harassment [blogspot.com] (suing a woman on disability benefits who didn't use file-sharing software) of innocent people [blogspot.com] is what's going on. And that is without noting that their damages are about $0.20/song (at retail prices, $0.99/song) but th
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Your whole gripe is based on a very broad concept of piracy. Anyone accused of piracy has committed piracy? Anyone listening to music without buying the whole CD? Storing a music file? How about in cache? Receiving an audio stream? How about recording an audio stream? borrowing a CD from a friend? Previewing a CD? All nice black and white issues to you, I'm sure.
Your "guilty until proven innocent" approach to those sued by the RIAA pretty much marks you as anti-constitutional. No surprise that y
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1) That's not our intention, or at least the intention of most anti-RIAA folk. i want the artist to be paid. The major labels gives the artist a tiny slice of the record sales. New artists often end up OWING money from the album's production and only make money when they tour. i WANT the artist to get the money i pay, not the label and not the lawyers and the RIAA. Artists can shift their income source to merch and ticket sales. Jonathon Coulton gives his music away and is making a good living off tix
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.
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I'm asking to have someone cite a source. Not to come up with numbers that they can't even confirm.
My source for what I said was actual recording agreements and actual royalty audits. Sorry they're not posted on the internet.
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Doesn't look like that's the case to me. The settlement says
1) she will pay them monetary damages, which escalate if she misses a payment,
AND
2) she submits to an injunction.
If, as they would have us believe, the RIAA really thinks everything the injunction covers would constitute a copyright violation, then I'm not sure the purpose of the injunction. Stiffer penalties? Simpler (for the prosecution) procedures to enforce? ...??? Soemthing I'm curious about, anyway.
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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.