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Record Company Collusion a Defense to RIAA Case?
NewYorkCountryLawyer writes "Is collusion by the record companies a defense to an RIAA case? We're about to find out, because the RIAA has made a motion to strike the affirmative defense of Marie Lindor, who alleged that "the plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have" in UMG v. Lindor."
The collusion here appears to be legal rather than economic so I'm not certain the anti-trust laws can be applied.
Who didn't know they were going to eventually use this? This is why the RIAA and not Empire, BMG, etc... brought all these suits, so they'd have this last ditch effort to break away should this finally explode in their faces.
Still, I wanna shake this woman and her lawyers' hands for this.
Just settle or admit that you are wrong. The RIAA is doing the right thing by protecting their intellectual property. Even though the only record label represented by the RIAA that doesn't try to sell all crap is Warner Bros. (Madonna is the only musician with any talent and by far the best singer ever), it is still wrong to make unauthorized copies. It is like stealing from a thrift store. It is mostly junk (except for Madonna, she is the best!), but it is still wrong. Downloading music without paying *does* cut into the profits of the labels and artists (all of the artists deserve further pay cuts for low quality product except Madonna). If you couldn't obtain it for free, you would pay for it. It is capitalism working without proper regulation such that those who invest time and money (time is money) into a product can't earn a profit. I think there is somewhat of an inelastic demand for music. If you raise the price by cutting out the free stuff, you will still see demand.
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Madonna has the best voice and content creation ability.
I don't think we'd have to work too hard to find lawsuits (especially class actions, obviously) that inlude two or more nominal competitors sharing resources when facing a common opponent in civil court, or when serially dealing with similar issues on an ongoing basis. Most industries have trade associations that exist precisely to allow members (who frequently compete with each other) to lower their collective overhead on commonly needed marketing, representation, lobbying, etc. One might even say that labor unions (and the meta-unions) - which represent intra-competing parties - are a similar beast. If there was a solid reason to argue that being a member of a trade association somehow torpedoes your copyrights, trademarks, or any other IP turf, that would already have been rabidly pursued.
Don't disappoint your bird dog. Go to the range.
Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, [approaches and softens] does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.[1]
- Nothing to see hear.
Great. Now my room-mate's head just exploded. Thanks. Do you know what it costs to get blood out of a hard-drive??
Given RIAA appears to be trying to do to sound recording rights what ASCAP, BMI and SESAC have done to performance rights, I would expect that the antitrust claim probably has some legs under it, given the consent decree resulting from the DoJ Antitrust Division's lawsuits against ASCAP and BMI in the '40s and '50s.
like a japanese cowboy, or a brother on skates.
First result of a Google search for "motion to strike." It would have been faster to look it up than to post a complaint.
If previous cases ruled in favor of the RIAA showed payment distributions being equal to each label within the RIAA, regardless of which labels specific copyrights had been violated, I think she'd have a pretty good claim there.
I'm not going to do any legwork at this late of night, but past victories for the RIAA, depending on the specifics, might come back and bite them on the ass.
One can only hope...
Labor unions have exemptions from the anti trust laws and such. Several other industry/arenas do to like Baseball and the likes. Class action lawsuits can only be a class action if a judge allows it so there is somewhat of an exemption there too.
But this isn't really like a Class action lawsuit or trade union. This is more like all the grocery stores in a town deciding one day that too many people are stealing milk. So they create a fictional association to protect themselves that goes into each home with or without permission to see if there is milk and if the milk was properly paid for. And then if it wasn't, they determine what kind of container the milk is in, the store who sold it (or should have sold it) sues that person for an obscenely large amount of money and offers to settle for a smaller large amount of money. But both sums of money are more then the value lost by the actions.
Currently, something like that is probably against the law. The defense being offered using colluding isn't going to say "i'm not guilty", it is going to say the evidence was collected illegally by companies acting in an illegal manor against US law for profit above the amount of actual damages and it cannot be entered into this trial. So then UMG says this person distributed our copyright covered materials and here is the evidence which is all gone because of the collusion, so you go, They have no evidence, can we just dismiss this and get on with our lives, The judge says sounds like a good idea and bangs the gavel.
Now this doesn't really touch on their right to sue or anything the accused might have done, it touches on the entering computers in a questionable manor and then attempting to extort funds from people, some of which didn't even have a computer at the time they were accused. So the question is, did the record labels and RIAA collude in a way that was against the law (if it harms one person/consumer, it probably is) and if so, can the evidence they gather when working in that manner be admissible to the cases that they brought about? Generally evidence is evidence except on occasions when civil rights were violated or it was obtained illegally by a party that would benefit.
While I agree with some of the sentiment expressed in other posts, especially to the effect that this is similar to a trade group, there seems to be one defining aspect in this case, namely the tying together of separate copyrights to pursue litigation.
While on the surface, it might be argued that the RIAA is nothing more than an aforementioned trade group (something that is both legal and desirable in many cases), tying ones copyrights into a collective pool is a bit more of a sticking issue.
The companies represented by the RIAA represent 99% of the major American labels (the only reason I do not say 100% is there may be one or two, but the majority are). Upon tying their copyrights together, they effectively stifle competition. How so?
Well, to use a (likely flawed) analogy, imagine if Microsoft and Apple decided to pool all of their resources and patents and copyrights. Now suppose a third party (for profit) company tried to get into the market. Apple may not have prosecuted initially since they did not have access to the patent/copyright pool, and probably wouldn't see this interloper as a direct competitor to be worried about. MS, however, would. So they open up the full force of the patent/copyright pool of both companies and cherry pick the most grievous ones. The company is financially sunk. This couldn't happen without the help of Apple's patents/copyrights too.
Now, I know patents != copyrights, but in a way, it is very similar. The RIAA has access to every song in every catalogue to every major artist. This allows them, by default, to prosecute across borders. It isn't BMG, Sony, and Dreamworks each launching separate suits, it is one company that can attack with a full frontal assault. Essentially, the power has been centralized, which gives too much power to the RIAA, and makes it impossible to resist against them reliably.
Essentially, while we are dealing with intellectual property (ugh, I hate that term) theft, and some of these people may well be guilty, the spirit of the law that was enacted was meant to deter those from doing this, not to crush the offenders into oblivion. And I think that last point is quite important, and also something that many have lost sight of. The laws were created as a deterrent, and as a method of punishment, much like the stocks were of yore. The laws were NOT created (in this country) as a method to crush the individual offenders into the ground (at least, save execution... and that is another issue altogether).
My 2c
Except, it's more like someone bought some milk and then magically made more, free duplicates of that milk and gave it away to neighbors. But now the grocery store doesn't get your money. And then they claim to be doing it in the interests of the dairy farms, but (not so secretly) aren't really giving much of the money for the milk to the farms and sure aren't giving any of the lawsuit money to the farms.
All I'm really trying to say is that there's no theft involved. It's just copyright infringement.
Name...That...Autocomplete!
That defense basically explains the situation. Stuff like these are always in contradiction to law of reason. Modern laws are built upon the philosophy that no fraction, group whatsoever should be able to be higher than the others in any possibility modern life has to offer - be it wealth, be it protection be it any right. It doesnt mean that the record cartel is actually a group that with hard work or chance a person or some people can set up a record company and get in. As a group, they are still way too privileged when it comes to business and law, and unfairly so. This contradicts with equality basis the modern society was built upon.
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Many are crying fowl that this sort of behavior is perfectly legal, but I would like to point out one thing (I mentioned this in another posting, but thought it deserved an entire post for I believe it to be a very scary point).
Imagine if you will the beginning of the free market's existence. Individual companies and groups barter for goods and services. If someone steps on the toes of another, the person who is wronged takes that person to court, and the transgressor is perhaps found guilty, irrespective of anything else he may or may not have done or is doing at the present. Fine.
Fast forward to the present. Now, instead if you step on the toes of one company (because so few major companies are one person alone), an industry group comes in with a warrant, and searches your computer. Not only do they find infringing material for the original plaintiff, but they also find about 500 other songs belonging to other members of their trade group. Well, they simply have the warrant expanded to search the rest of your network and proceed to sue your pants off for those 500 songs that they found. This means that the process has become streamlined in favour of the companies. This is not good.
Now, go a little further into the future. Not only are there trade groups, but Super-Trade-Groups. Perhaps ones dedicated to the entire entertainment industry (MPAA-RIAA-Shakespearean Theatre Company AA-ad nauseum AA) or perhaps there is just one big-super group. Think of it as a catch-all group that includes the MPAA-RIAA-Microsoft-Apple-Book Publishers-Knitting Pattern Companies-Recipe authors-TV broadcasters-GE-GM-IBM-and any other acronym in any industry).
Everyone has broken the law in some way or another. Imagine though, if a super-group could walk into your life, find all of those transgressions, and can now say: pay up (in installments of course, and there might even be an interest-only version of the payment schedule). This would mean a guaranteed source of income, and not only that, but it would also assure them that they could treat you like a criminal at any point.
If such behavior became common, it might even pose as a catalyst to lower the requirements for a warrant -- to the point where the super group can simply have a catchall carte blanche that they can use as they see fit to protect America from pirates and terroristas...
Welcome to 2084, Orwell's sequel.
No, it's not like milk at all. If you're going to go there, and I don't think you should, it's more like Coke or Pepsi.
Your magic, free Pepsi machine is knowingly interfering with the undisputed property rights of Pepsi. Pepsico holds the exclusive rights to make Pepsi. Coca-Cola holds the exclusive rights to make Coke. You do not have the right to give away more Coke or Pepsi than you purchased. If you bought a bottle and magically made more, congratulations, but you can't give away or sell even a single drop more than that one bottle of soda.
The rest is true about the RIAA and their greed and general worthlessness. But you're skipping the part where you consider that what you're offering for free isn't yours to offer. You can make something similar (as long as it's not derivative) and give that away for free. You can record a cover of a song and give that away without worrying about the RIAA (you may need permission from other entities). You can't give away something that has commercial value and is owned by someone else.
Two wrongs make a RIGHT:
I've purchased x number of CDs for an average of z dollars (a price which was illegally inflated by an average of 200%).
I've downloaded y number of albums which were...free.
If xz < yz/2 then I suppose I ought to be immediately dumped into the furnaces of Mordor.
If xz > yz/2 then I am a moral individual and the RIAA can suck it.
It's their RIGHT:
Hey, it's their content. They can dictate what should be done with it. This is America. Constitution. Blah blah blah blah blah if you don't like it, gyet out.
They'll never understand what is RIGHT:
They don't see how badly they've sullied the reputation of every artist they represent, the entire process of making money from playing music, and the beloved image of the American rock star. They'll just keep on beating a dead horse, because they're old, and stupid, and ugly, and they have small wieners, and they don't really care about musicians (let alone music), and did I mention they have small wieners?
We are RIGHT:
Hey, it's our hot music. We do what we want. We do what we want. We fly by the seat of our pants and eat copyright law for breakfast. You aint bad. We bad. We download full length films the day before they come out and watch shitty screening cams that forever ruin the experience of the film, but at least we don't give the MAN our money that we made by selling downloaded music at flee markets. Yeah, look at us. We do what we want.
The desire to profit isn't RIGHT:
Artists can't expect to make money from making music, and shouldn't expect to. They should want to make music because they love it. Yada yada yada...love is all you need.....yada yada yada....the marketplace corrupts.
Newer models are RIGHT:
Just accept that CDs are promotional items to drive other types of sales, and stop suing grandmas. You can't stop progress, and you can't come up with DRM that some pimply teenager won't hack within a few weeks.
The RIGHT thing here is to do what you feel is RIGHT, no matter what the legal RIGHT:
Your right to point and click and use your ears *feels* as legitimate as (or more than) theirs to enforce their right to restrict *every* listening of a song to some type of commercial transaction, yet legally it isn't. Think about the artist. Think about the label. Think about the music. Think about your bank account. When you love an artist enough, you know you'll spend money on them. This is the compromise most of us make. This is the compromise the industry has to get used to.
If the RIAA labels were actually competing among themselves, then any one of them would be happy to see the others suffer alleged loss of sales. Paying RIAA lawyers to safeguard their alleged competitors' profits is therefore direct anti-competitive collusion, rather than mere pooling of legal costs: they pay shared lawyers to perform actions which they know will support their "competitors".
If real competition between labels existed, then individual labels would reduce their own prices to make official purchases as attractive as file sharing, and they would provide vast band sites to attract the purchaser, and broaden their music spectrum away from the incredibly narrow current crap, and entice fans into buying the physical albums and accessories later for profit, as fans like to do. (Often much later in life, when they have more money.) In a nutshell, they would compete on product.
If you stand back from this whole scene and try to see it through the spectacles of a free market and competition analyst, you'll find none of those elements present in their music marketting. RIAA labels simply do not respond to drop in sales by reducing their prices or raising their quality and music coverage, like indies do.
It's often described as a cartel, but some cartels are relatively shallow and defensive, whereas this one effectively has the entirety of public media in its grasp and the ears/wallets of politicians too, and has a strategy based on offence and intimidation. It is about as malevolant and anti-competitive as you can get without breaking kneecaps. And while they don't break kneecaps, they certainly have no compunction about destroying lives economically, based on legal theories which they lobbied to create.
Their slimy lawyers will probably slither out from under a charge of anti-competitive economic collusion because the legal system is driven by technicalities rather than substance. But the RIAA labels are certainly guilty as sin of it. They lost any concept of competition between them long ago.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
I, personally, drink Regal Cola. It's made locally (Australia) and costs about 40% less than Coca Cola. It tastes closer to Coca Cola than it does to Pepsi Cola, and I've found it has a crisp taste that I haven't found in other cola varieties.
If it was found that Regal Cola had similar ingredients to Coca Cola or Pepsi Cola, the law would provide no "protection" to any of these players. As such, I have the choice which product I want to buy. I can choose which I prefer because they are essentially the same. This can't be said for music.
How we know is more important than what we know.
[bought tape and CD] And now they want me to buy it again, just so I can play it on my computer.
No, I don't think they ever said "please don't rip the CD to MP3 using readily available tools". Downloading is not really and more convenient than home ripping, and home ripping can only be done by people who own the music. (Well, anyone who has borrowed a copy can too, but that's a side issue.)
Downloading's a bit different in that you don't need to have the original to download an MP3. The vast majority of downloaders don't have the originals. Ergo, lost profits.
Like it or not, they were only speaking up for their rights.
HAL.
Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
I think some of you are missing the point. The "misuse of copyright" defense is not about penalizing the RIAA and their member companies (I'll just collectively refer to them as RIAA) for being greedy bastards (although that would be nice), or about antitrust activities (although that could be argued as well). It's about the RIAA's "campaign of terror" against randomly selected innocent persons; an effort that they call their "nationwide anti-piracy efforts". The EFF has described RIAA's strategy in it's amicus brief (http://www.eff.org/legal/cases/Capitol_v_Foster/a micus_in_support_of_fees.pdf/ - warning: PDF). RIAA has no factual proof of any of their recordings actually changing hands between two people. All they have are "fabricated" screen shots (they've edited them to remove their own IP addresses) of lists of files with unknown content that are allegedly associated with a particular IP address. Then they jump to the flawed conclusions that the files are their copyrighted works, that an IP address is the same as the owner of the allegedly associated account, and that just having the files available is an instance of infringement. None of this is supported by law or precedent (or even fair justice). In fact, none of their cases from this campaign have even made it to jury trial. What has been established in law and precedent is that by using intellectual property (IP) rights to influence others' behavior beyond the scope of those rights (analogy of monopolistic abuse in antitrust cases) is a misuse of those IP rights. It follows that by using their copyrights as a basis for waging this "campaign of terror" against innocent persons, the RIAA is misusing those copyrights. The just remedy for such behavior is to revoke the copyrights.
Even if you support the RIAA's efforts, those efforts are having the opposite effect (see EFF report http://www.eff.org/IP/P2P/riaa_at_four.pdf/ - warning: PDF). The report even offers a suggestion on how the RIAA can change their business model so that all sides win. So why does the RIAA persist in it's "campaign of terror" if it is not working? Why do they stick with the same flawed, antiquated business model? In my opinion, they are just like "dinosaurs headed for extinction".
So what can we all do? I'd suggest: write to your elected officials to complain about RIAA and their member companies' behavior; contribute to the EFF; if you know anyone targeted by RIAA, support their legal defense; and to the extent possible, boycott the RIAA and their member companies until they change their ways.
Regards,
Art (IANAL)
There's no comparison at all.
Here we have 4 multinational corporations who control 80% of an industry. They have pooled all of their copyrights and joined forces in a blood pact not to reach a separate settlement with any defendant. Their settlements are nonnegotiable. It is their way, or the highway.
It is textbook collusion, which has one purpose and one purpose only -- to take the value of their copyrights, which are each lawful monopolies, and leverage and combine them into a greater, more powerful, more valuable supermonopoly. It is a classic, textbook example of copyright misuse.
Ray Beckerman +5 Insightful