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Copyright Troubles For Sony

Posted by kdawson on from the billion-here-billion-there dept.

ljaszcza writes "Daily Tech brings us a story about Sony's run-in with the Mexican police. (Billboard picked up the story as well.) It seems that they raided Sony's offices and seized 6,397 music CDs after a protest from the artist, Alejandro Fernandez. Fernandez had signed a seven-album deal with Sony Music; he completed that commitment and then left for Universal. During the time with Sony, he recorded other songs that did not make it into the agreed-upon seven albums. Sony Music took it upon themselves to collect that material and release it as an eighth album. Fernandez claims that he fulfilled his contract with Sony, and residual material belongs to him. Hmm. Precedent from the Jammie Thomas infringement and distribution case gives us $80K per song. Sony vs. Joel Tenenbaum gives $22.5K per song. So 6,397 CDs at an average of 8 songs/CD is 51,176 infringing songs, with (IMHO) intent to distribute. The damages to Fernandez should be $1,151,460,000 using the Tenenbaum precedent or $4,094,080,000 using the Thomas precedent. Seems very straightforward to me."

54 of 276 comments (clear)

  1. If only... by meerling · · Score: 4, Insightful

    You just know they'll find some way to weasel out of it...

    1. Re:If only... by sopssa · · Score: 4, Informative

      Why does the summary talk about "Precedent from the Jammie Thomas" when this case is in Mexico, while Jammie Thomas was in USA? Precedent's in USA aren't precedents everywhere (how many times this shit has to be told to americans?) and most of other countries actually have sane amount of compensations in copyright infringement cases, unlike USA.

    2. Re:If only... by rolfwind · · Score: 5, Insightful

      Why does the summary talk about "Precedent from the Jammie Thomas" when this case is in Mexico, while Jammie Thomas was in USA? Precedent's in USA aren't precedents everywhere (how many times this shit has to be told to americans?) and most of other countries actually have sane amount of compensations in copyright infringement cases, unlike USA.

      RIAA sister organizations around the world actually point to USA and screams "Be more like them!" when trying to roughshod legislation through... so it only seems fair.

    3. Re:If only... by Another,+completely · · Score: 5, Insightful

      I think the point was that Sony corp. made an official public statement by about what they feel a stolen song is worth, and filed it in court. Even if the case verdict isn't a legal precedent, surely the researched market analysis filed in a foreign court can still be cited as a fair assessment that is endorsed by Sony. (Ok, IANAL, and the case in the U.S.A. was probably some legally-independent entity, completely separate from the Sony-owned company in this case, but it still has to count for something.)

    4. Re:If only... by siloko · · Score: 4, Insightful

      RIAA sister organizations around the world actually point to USA and screams "Be more like them!"

      They can scream all they like they are still only a lobby group and as yet don't have the power to pass legislation in there home countries so the GP is right in pointing out the difference between US law and that in other countries. Suffice to say this may change in due course when Corporatism becomes so embedded globally that industry pressure groups are the dudes signing off on legislation . . . ho hum . . .

    5. Re:If only... by jcr · · Score: 5, Insightful

      I'd like to see US law applied in the USA.

      -jcr

      --
      The only title of honor that a tyrant can grant is "Enemy of the State."
    6. Re:If only... by jcr · · Score: 2, Funny

      Hey, get off the fence, will you? How do you really feel?

      -jcr

      --
      The only title of honor that a tyrant can grant is "Enemy of the State."
    7. Re:If only... by digitalunity · · Score: 2, Insightful

      I would really like to see what Sony would tell the Mexican court they feel copyright infringement should be worth. I doubt it will ever get that far though.

      I'm sure Sony's view on infringement damages is wildy different when they are the defendants.

      --
      You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
    8. Re:If only... by commodore64_love · · Score: 4, Insightful

      Whatever.

      We all know that Sony will wiggle out of it. Just the same as when the U.S. sued the record-companies for "forming an illegal cartel" and price-fixing CDs from 1990 onward. Although the U.S. could have won that case, the record companies negotiated a deal where they simply returned ~$20 to everyone who asked for a refund. I bet Sony will also weasel a way such that it costs them virtually nothing.

      Corporations have power to make the government decide in their favor. I'm about to drive to JCPenney and demand to know "why did I never receive the 50 dollar mail-in rebate promised when I bought this appliance?" I already know the answer I will receive is "too bad, there's nothing we can do about it," and I'll never see that 50 dollars. Technically that's called illegal advertising of the price (they advertise 150 in the newspaper but I paid 200) and a criminal offense.

      In reality a call to the California AG won't get me anywhere because the AG is bought-and-paid-for by the corporate dollars who put him in office. JCPenney, Sony, et cetera get away with this stuff because THEY own the governments of New York, United States, Mexico, et cetera.

      Sony will weasel its way out just like it always does.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    9. Re:If only... by leuk_he · · Score: 3, Interesting

      "Sony corp. made an official public statement by about what they feel a stolen song is worth"

      No, they never did that. They weasel out of such a statement. They just point out how much the legislation allows them. If they made such a statement the damange could be substantiated and would be more realistic ( like 6 dollar per number instead of a value thousends times higher)

    10. Re:If only... by dimeglio · · Score: 5, Insightful

      The fact that the police raided Sony is enough to convince me that this will not be like the USA. At least Mexico gives a shit about their artists as individuals. The suit wasn't be a Mexican RIAA but by the artist himself.

      --
      Views expressed do not necessarily reflect those of the author.
    11. Re:If only... by Skrynesaver · · Score: 4, Funny

      There is, we even have our own flag, it's just like yours, but on fire (Apologies to Rob Newman)

      --
      "Linux is for noobs"-The new MS fud strategy
    12. Re:If only... by Prefader · · Score: 3, Insightful

      The artists already know that the record labels are scum. They just think the huge piles of money that get waved around in front of them are more important.

    13. Re:If only... by The+Cisco+Kid · · Score: 3, Insightful

      Fsck that. I *never* consider the 'price after rebate' to be the price. I consider the 'amount of cash I have to hand to the clerk to carry it out of the store' to be the price of an item.

      Why should I loan some retailer $50 of my money, at 0% interest, and then have to jump through hoops to get it back (including sending original copies of documents (receipt) that if *they* lose or claim they never got, then I no longer have the original to prove I have a valid claim)? If the goddamn price is $150, then you accept my $150, and *you* (retailer) fark around getting the other $50 from the manufacturer. If I have to give you $200 to get it out of the store, then as far as I'm concerned, the price is $200.

      So "$175" (out the door, no hoop-jumping) is a better price than"$150 ('after $50 rebate')"

    14. Re:If only... by Opportunist · · Score: 4, Insightful

      You need a system like ours. Here, we pay for political ads with tax money. While this may seem a bit idiotic (hey, pay to get pestered with ads?), the alternative is politicians selling out to corporations for ad money.

      That, in turn, is tightly regulated here and mostly outright illegal with steep fines and a certain ejection from whatever seat you got elected into.

      Personally, I prefer to buy my politicians myself instead of privatizing that.

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
    15. Re:If only... by mauriceh · · Score: 2, Interesting

      The answer to your question is very simple:
      The USA is insisting that other nations, to continue to trade with the USA, must comply with US copyright and IP laws.
      As a Canadian, we see this tactic engaged regularly.
      By logical extension, if other nations ( especially ones in the North American Free Trade Association, AKA "NAFTA")
      are to be compliant, then the penalties for breach and theft need to be similar.
      Hence the comparisons to the cases where specific fees per song were calculated.

      I believe the historic term is "Live by the sword, die by the sword"
      See Matthew 26:52

      --
      Maurice W. Hilarius Voice: (778) 347-9907
    16. Re:If only... by MobileTatsu-NJG · · Score: 2, Funny

      I think the point was that Sony corp. made an official public statement by about what they feel a stolen song is worth, and filed it in court. Even if the case verdict isn't a legal precedent, surely the researched market analysis filed in a foreign court can still be cited as a fair assessment that is endorsed by Sony. (Ok, IANAL, and the case in the U.S.A. was probably some legally-independent entity, completely separate from the Sony-owned company in this case, but it still has to count for something.)

      On a side note, I think it's totally awesome that Sony has given us such a great example of what the difference is between infringement and theft. :D

      --

      "I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)

    17. Re:If only... by HiThere · · Score: 3, Interesting

      That, of course, makes it quite easy for the parties in power to keep out any new comers.

      Not that the US system makes starting a new party feasible. They just use different techniques.

      It *might* be a trade-off worth making. But lots of parties and Condorcet or Instant-Runoff voting would seem to be a better solution. Also make lying in a campaign speech a criminal offense. (That one's tricky, though. It could so easily be misused. Maybe it isn't worth the danger.)

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
  2. Some counterpoints by Hitman_Frost · · Score: 5, Informative

    One point regarding Jammie Thomas. She actually had 2500 illegally obtained tracks on her PC, but was only prosecuted for a handful of them so the $K22.5 I often see bandied around isn't strictly accurate.

    Sony are clearly in the wrong here however. Unless the contracts says music created during those recording sessions, not the songs that reached the final albums. As we haven't seen the contracts I wouldn't like to speculate.

    (Just being the Devil's Advocate, guys.)

    1. Re:Some counterpoints by Anonymous Coward · · Score: 4, Insightful

      Another point on the same topic. What the fuck does American precedent have to do with Mexico?

    2. Re:Some counterpoints by pipatron · · Score: 4, Informative

      Yeah, except musicians and artist are normally not employed by the record companies. The article clearly says a seven-album deal.

      --
      c++; /* this makes c bigger but returns the old value */
    3. Re:Some counterpoints by deathy_epl+ccs · · Score: 4, Informative

      Except for record contracts are NOT employment contracts. The bands are not employed by the record companies, the contracts are usually for the set number of albums. By standard recording contracts, the artist in this instance is the one who's most likely right.

    4. Re:Some counterpoints by rdnetto · · Score: 4, Funny

      Hush you! Quit raining on our parade!

      --
      Most human behaviour can be explained in terms of identity.
    5. Re:Some counterpoints by Jellybob · · Score: 4, Interesting

      Most record contracts include a clause that you're studio time is paid for out of the money made from the albums, so Sony didn't provide facilities, they hired the facilities to the artist.

    6. Re:Some counterpoints by digitalunity · · Score: 3, Insightful

      If any Cd's were to be sold in the US, they are culpable here in the US.

      --
      You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
    7. Re:Some counterpoints by thisnamestoolong · · Score: 4, Insightful

      Did Sony provide facilities for recording the disputed songs? Still, what's in the contract is binding...

      No. Sony simply provides the artist a loan -- Sony pays all the cost of producing the album up front, but all of the costs must be recouped through album sales before the artist sees any income. Even after that, Sony will still take the vast majority of the profits (usually around 80% if you are lucky), which is why I have an aneurysm every time I hear the RIAA say they are doing something "for the artists".

      As ownership of the tracks -- it is all about what is in the contract. I have a sneaking suspicion that Sony lawyers have some sort of loophole written into the contract to protect them from liability in this matter, being the bottom-feeding vermin that they are.

      --
      To the haters: You can't win. If you mod me down, I shall become more powerful than you could possibly imagine
    8. Re:Some counterpoints by pdabbadabba · · Score: 3, Informative

      Well, it doesn't actually matter that they're employees. Under US law (which we're apparently pretending applies in Mexico), any Work For Hire is generally considered the property of the party that did the hiring. The definition of a Work for Hire from the Copyright Act:

      Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)

      Of course it's an open question whether their contract said that their work was a work for hire, but it seems likely to me. This is generally how labels work. (That's why the label sues you for infringement, not the artist.)

      --
      caritj.org
    9. Re:Some counterpoints by jedidiah · · Score: 2, Informative

      Once again this persistent MYTH that the labels actually provide
      the artists with anything more than what amounts to a big bank
      loan rears it's ugly head. Artists pay for EVERYTHING. What puny
      royalties they do get when the work sells has to be used to pay
      back any production costs.

      This is how a multi-platinum recording can leave the band in debt to the label.

      --
      A Pirate and a Puritan look the same on a balance sheet.
  3. So how many cd's do we need to sell by zlel · · Score: 4, Funny

    to feed our musicians again?

  4. Precedent from Jammie Thomas? by beerbear · · Score: 5, Insightful

    Mexico. United States. Not the same thing.

    --
    Hold my beer and watch this!
    1. Re:Precedent from Jammie Thomas? by Instantlemming · · Score: 4, Insightful

      Well, the US seems to think that their rules are to be applied globally, especially when it's about audio/video material...

    2. Re:Precedent from Jammie Thomas? by yariv · · Score: 3, Interesting

      It happened in Mexico, but does it mean they can't be sued in the US? Although not directly related, I immediately remembered this: http://en.wikipedia.org/wiki/Hew_Raymond_Griffiths.

    3. Re:Precedent from Jammie Thomas? by Cheesetrap · · Score: 3, Interesting

      Individual. Corporation. Not the same thing.

      True. Multiply the figures by a factor of between 2 and 10 to match the usual ratio of "individual fine" and "company fine" for violations of civil laws. Oh look, they're still buggered. Happy days! :)

      As another commenter pointed out, whatever precedent they set by weaselling out of this charge will just make it easier for the next person defending themselves against copyright infringement charges in Mexico or wherever this gets fought out. Ah, they'll probably just settle though, which would be the safest option for them, damn.

      It's also worth pointing out that they have an obvious intent to distribute for commercial gain... CD prices have been a crime for the better part of a decade, it's about time it made it to court! :P

    4. Re:Precedent from Jammie Thomas? by jedidiah · · Score: 2, Insightful

      We already did that sort of thing once.

      That's where the bulk of the Western United States comes from.

      --
      A Pirate and a Puritan look the same on a balance sheet.
  5. "You woldn't steal a CD" by Anonymous Coward · · Score: 5, Funny

    Would you, Sony?

  6. Screw the lottery by cfriedt · · Score: 4, Funny

    The chances of being able to sue somebody over copyright infringement in the recording industry are a heck of a lot better than playing the lottery.

    It's like winning 1000 lotteries at the same time! Screw the lottery!

    Time for a career change? I can't sing or dance particularly well, but people can take lessons for that kind of thing.

    1. Re:Screw the lottery by lordandmaker · · Score: 2, Funny

      postprocessed into a hot teenage girl

      Is that what the kids are calling it these days?

  7. 51576? by Wildclaw · · Score: 2, Insightful

    at an average of 8 songs/CD is 51,176 infringing songs,

    Sorry, but you fail. The big companies may be evil, but they aren't stupid. You may only count the 8 songs once. Scratch that. As those song were distributed as one unit, so you can make a good argument for a total count of 1 infringement.

    The reason for the $150,000 number in the law was exactly because it was aimed against large scale infringement like the one we are talking about here, but that has just made it even more effective (cruel and unjust) against small scale distributed infringment.

    1. Re:51576? by 91degrees · · Score: 3, Interesting

      So that would work out to about $3 per copy of an infringed song, which is roughly triple damages, which, I understand, is typically for wilful infringement.

      The law is reasonable. Applying it to non-commercial infringement isn't.

    2. Re:51576? by Lonewolf666 · · Score: 4, Insightful

      Counting the 8 songs as 8 units seems appropriate, since that is the precedent from other file sharing cases. Jammie Thomas and Joel Tenenbaum did not get to argue that their shared songs should be counted as a smaller number of albums.

      Which leaves us with $80K per song (Thomas) times 8 or $22.5K per song (Tenenbaum) times 8. That is $640K or $180K. Looks like appropriate damages because this is large scale infringement as you wrote. In the Thomas and Tenenbaum cases I consider it excessive.

      This said, Mexican law counts here and the sums may be much lower. Unless Sony also distributed that CD in the US as well, then Fernandez might want to sue in the US too ;-)

      --
      C - the footgun of programming languages
    3. Re:51576? by L4t3r4lu5 · · Score: 4, Interesting

      You're forgetting that each copy of a song is potentially a lost sale for the artist.

      Why do you think MediaSentry wanted the connection history from ISPs so they could figure out how many potential copies were made.

      --
      Finally had enough. Come see us over at https://soylentnews.org/
    4. Re:51576? by Spy+der+Mann · · Score: 5, Interesting

      There's a more important matter in here. This isn't about unauthorized material reproduction, but unauthorized material reproduction with the INTENT of making a profit.

      Sony's screwed.

    5. Re:51576? by Mushdot · · Score: 2, Funny

      But, Sony haven't actually distributed the music. They have merely burnt 6,000 backup copies. That's probably how they will get away with it.

  8. Re:Corruption is good when it works in our favor by Lonewolf666 · · Score: 3, Insightful

    Where did you get the idea that the Mexican Police was bribed?

    There is nothing about that in TFA.
    Besides, raids on suspected copyright infringers are nothing new. There have been similar raids on The Pirate Bay, and Sony certainly operates on a comparable scale. That is not some school kid who shares a few albums on his computer.

    If the allegations are true, this is a case of commercial copyright infringement. A rather big fish, certainly bigger than Tenenbaum or Thomas.

    --
    C - the footgun of programming languages
  9. Sweden. United States. Not the same thi... by meist3r · · Score: 5, Insightful

    Oh whoops

  10. His contract may still include these works by Pitr · · Score: 2, Insightful

    If you have a contract to produce a certain number of albums, but you also sign over ownership of your works during the contract, then the songs you produce during your contract even if they don't make it to an album belong to Sony (or whoever).

    IANAL and it depends on the fine print, but there's a good chance this guy is boned.

    --

    --Not to be worried, Pitr fix.
  11. Icorrect advocacy by Anonymous Coward · · Score: 3, Informative

    She wasn't CHARGED with those other files.

    If they were to be included in a further lawsuit (which requires the COPYRIGHT HOLDER to start a case, hence not included in this lawsuit), then 80k per track could be put forward as equitable under case law.

    So your spouting is farcical.

  12. Re:Corruption is good when it works in our favor by Jurily · · Score: 2, Interesting

    Besides, raids on suspected copyright infringers are nothing new. There have been similar raids on The Pirate Bay, and Sony certainly operates on a comparable scale. That is not some school kid who shares a few albums on his computer.

    Things like that happen everywhere. Unfortunately Google Translate fails horribly (for example, the Hungarian word "lett" means both Latvian and was/became).

  13. Who paid the studio costs? by EdgeyEdgey · · Score: 2, Insightful

    Usually whoever pays the costs of the studio owns the mechanical copyright.
    Although what annoys me about that line of reasoning is that record companies reclaim the recording costs from the artists share of the profit, and so should forfeit any ownership.

    --
    [Intentionally left blank]
  14. Punishment by whisper_jeff · · Score: 5, Insightful

    While I think ljaszcza's claim of precedent is flimsy, at best, I do hope that Sony is absolutely smashed in court over this. This is _commercial_ piracy. This is piracy-for-profit. If non-commercial piracy between individuals carries penalties of tens-of-thousands of dollars per song then commercial piracy damn well carry a significantly heftier fine. After all, _THIS_ is the sort of thing that copyright law is intended to protect against - someone making money off of someone else's work without their permission. _THIS_ is what the law is supposed to protect against. With a hint of luck, the law will actually do something about it rather than look the other way.

    Wouldn't it be nice if the group involved in drafting ACTA were made aware of this. After all, I'm sure Sony has been involved in "suggesting" elements of the ACTA proposal so I'm sure any punishments they've suggested they would be comfortable with paying...

  15. No, wrong-o by Mathinker · · Score: 3, Interesting

    Musical recordings, at least up to now, haven't been accepted as belonging to the enumerated list of types of works which are automatically works for hire if produced for compensation.

    In most cases the artist(s) assign their copyrights to the labels, and this means that soon, starting around 2013, there will be an interesting battle in the Federal courts whether or not the artists can terminate these assignments as stipulated in the 1976 Copyright Act.

  16. Re:Listed as "Humor?" by silanea · · Score: 3, Insightful

    The Big Corp in media always tell us how they fight non-profit copyright infringement to help the artists, and here Sony may have been caught infringing an artist's copyright with intent to profit from it. This makes Sony's action more wrong than that of Jammie Thomas et al. on two levels: legally (because it is for profit) and morally (they screwed over the person they claimed to protect and support).

    --
    Rudolf Hess edited Mein Kampf. He was the very first grammar nazi.
  17. Reply from a Mexican by greetings+programs · · Score: 2, Informative

    Although the information is correct, the poster resoning is very silly. I am from Guadalajara, and I happen to know the guys on Alejandro Fernandez' Law Firm. I assure you almost nobody here has ever heard from Jammie Thomas or Joel Tenenbaum, or care about it, and our law system for better or for worse is completely different from the US law system. The law is more based on the written law. It is very rare that a case creates precedent, and of course to a case from the US. As much as I would love Sony Music get slapped with a big fine, you can expect they will only be slapped in the wrist and I almost sure that the lawswit aims more to prevent the distribution of the album and songs and scare some shit out of the stupid Sony execs. Besides, Alejandro Fernandez is well known for being a very spoiled brat, so take his words with a big grain of salt. His lawyer is also very aggresive, so we can expect some media frenzy about this. But not much more.

    --
    Greetings, programs!
  18. Missing a key point by ae1294 · · Score: 2, Insightful

    You guys are missing a key point that shows that Sony is not going to be distorted but they aren't getting off the hook totally ether.

    From TFA:

    Sony announced it was creating an album of Fernandez' previously recorded music, which Universal protested.

    The lawyers over at Universal have already read the contract and while they might know they will loose at trial they are betting Sony will settle...