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RIAA 'Elektra V. Barker' Case Is Settled
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.'"
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.
AccountKiller
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.
Ray Beckerman +5 Insightful
and milk comes in bags ( it does. )
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.
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. She just decided to pass on a rematch, but in my book she goes out a champion.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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.
... I just don't get the logic behind a lot of this.. the RIAA and MPAA both...
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.
Michael J. Ryan - tracker1.info
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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 you suck up the MAFIAA so hard.
I'd be just as happy to accuse the RIAA of looting the public while the "fair use" lock is broken. Their stock and trade is radio airplay royalties. How this relates to what I do with a CD after I have purchased it is far from settled.
FWIW, I'm a musician and do production work. I have no idea, nor has the RIAA clearly posited, how their actions serve anyone other than themselves. You would think that there would be some kind of massive artist outcry... but they are being reamed so hard by the labels, who renege on contract elements at will, that they use the d/l data when working out either their transition to small labels or to self production and distribution. Even at 0.0% d/l leakage the artist doesn't make their money from sales. They make it on the road and from advert licensing.
So spare us the RIAA rah rah, please.
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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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.
~REZ~ #43301. Who'd fake being me anyway?
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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.
Try not to take me more seriously than I take myself.
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 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).
Ray Beckerman +5 Insightful
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.
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful