Slashdot Mirror
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.'"
I guess her lawyer's barker was worse than her biter?
Barker: We had milk crates filled with albums....
Elektra: So what have you done for us lately?
Hans Dannik
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?
The funny thing is that the milk crates were almost certainly stolen and illegal for them to have as well.
I bet she stole the milk crates too.
"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.
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
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.
Read radical news here
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.
No mod points, no meta-moderating/Firehose/all the other free work Slashdot wants me to do.
It was flamebait. Ms. Barker wasn't talking about the legal issues at all. She was just talking about her personal feelings about music, and about how this litigation made her feel. To attack her from the flank like that was pure flamebait.
Ray Beckerman +5 Insightful
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
Actually, as in all the RIAA cases, she was sued for *distributing* the files by having them in a shared folder on Kazaa. The RIAA is not going after the people who download, they're going after those who "make available" whether the people legitimately purchased the music or not.
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. However, the tactics that they resort to, the lack of sense or humanity they display in their conduct and the clear abuse of our court system disgusts me far too much for me to support them. It's one thing to stand up for your legal rights...it's entirely another to game the entire system (wasting taxpayer dollars as a result) and destroy innocent lives simply because you don't want the gravy train to end. It's hard to attribute morality to a corporate entity, but if it's possible then it's safe to say that the RIAA has long ago crossed the line into evil.
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.
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.
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
For NYCL; Okay - so I am bit slow on legalese - so forgive the grade-school level question. She took up the settlement (can't blame her - the soap opera has to be stressful) however, all the arguments and defenses are laid out that any other person targeted by the RIAA could use these as the blueprint for their defense, and have a judge rule on them? (correct?) Could then someone include her settlement in a further class action of some form, and get it overturned ? If so, this would be more of a 'baton relay' than a capitulation as some suggest.
Modbomb incoming.
... and check it after they leave, just to make sure nothing's missing
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 with their agenda because it will make me more money, I put my hand on my wallet
The higher the technology, the sharper that two-edged sword.
Man, I can't wait for the CIAA (Cow Industry Association of America) to come after her as well.
I mean, if a 99cent song is worth $150k in damages, think how much an actual milk crate is worth!
My favorite quote doesn't fit into 120 characters. Now no one will like me.
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
Utilizing the synergization of benchmark e-solutions to pre-workaround action items!
Not if you look at this with the proper perspective. The big labels don't want too much of this PR mud to stick to them, so they pay serious money to the RIAA to do the ugly stuff for them. And it's working: people keep using "The RIAA" when they really mean "The Record Labels".
The higher the technology, the sharper that two-edged sword.
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?
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.
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 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 be you."
Luckily, I had enough money to just pay the entire thing off in cash, and I wasn't dumb enough to sign up for a full-interest-up-front loan. But, yeah - it was pretty clear their goal was to avoid warning me about that payment in any way, just so they could raise the rate as quickly as possible.
Breaking Into the Industry - A development log about starting a game studio.
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
$45K/year is about what the average household income is in the U.S. Now substitute venture capitalist for recording company in the article. What does the average guy who started a software company get? About the same deal as this mythical band got. The band didn't have to take the contract. Neither does the software engineer. Both can try to make it on their own by growing their customer base organically. But if you decide to take the man's money in order to shortcut the process, why do you think that you are entitled to the riches? It was the VC or recording company that took the risk that you were going to be a flop. It isn't your money that is being risked, it is theirs.
FreeSpeech.org
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