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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.'"
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.
"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
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
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
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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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
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