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.
This is certainly much better than that schlock from Courtney Love.
Her report is not schlock.
Although I do find it disturbing that artists don't recognize an advance as a payment for recording.
In the first example I gave, forget about the advance. The artist's royalty still comes out to below zero.
I certainly wish that I could get a year's salary in advance with no more than a promise that I would show up and hey, if I'm not as productive as my company hoped for, oh well, that's the breaks (for them).
Most entertainers who rely on record companies are hand to mouth. They get the advance, and often -- that's it. It's not an easy life.
And while I do appreciate your efforts I'm also doing my own research and I'm coming up with artists who are more forth coming about royalties and the digital distribution "revolution" people around here keep cawing on about that shows that artists (in certain situations) are much better off when a fan buys a CD over using iTunes and the royalties that I have seen quoted there off-set these numbers by a pretty far gap.
I'm glad you're doing your own research. Last thing I would want is for you to rely on my anecdotal information. However, the record companies are even worse about accounting for digital royalties than they are about cd's... it's harder to audit that. So if your research tells you otherwise, you'd better do some more research.
It still all comes down to the original question of the oft quoted "0.02".
I think that was just a metaphor. In the example from that music lawyer, the number was "0.00" (actually less because there were still unrecouped "expenses".) In most cases the number is "0.00".
If these numbers in your example are set by a legitimate recording and it's sale than the artist actually walked away with 0.10 for doing nothing more than putting out an album regardless of it's sales.
That's an odd way of looking at it. Your analysis is way off.
1. "nothing more than putting out an album"? The whole thing is "putting out an album". That's the music. That's the creation. That's what it's all about.
2. The artist -- probably a band composed of 3 to 5 individuals -- did not pick up $50,000; they had to pay at least $10,000 to $15,000 of that to their manager and to their lawyer. And like the rest of us they had to pay taxes etc. And they had to split it 3 to 5 ways. And then they have to wait years and years, and probably will wait until eternity, to ever see a nickel.
3. But even if they had gotten 50,000, while the record company took out 624,000, most of which was pure profit to the record company.... that is ridiculous.
If you're a musician, and you sign up for one of those recording agreements in this day and age, all I can say is.... you're dumb.
In this example the artist sold 500,000 albums, and earned ZERO royalty. The 2-cents Courtney Love example is even more generous than this one. And this one is by no means atypical, except that it is very rare for someone to sell as many as 500,000 albums.
Here is a good analysis by a music lawyer of how the royalties get whittled down to zero. Here is a detailed article about how it works. Here is the detailed Courtney Love presentation. Some more information on how it works. Here is a report by the Recording Artists' Coalition.
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.
With all this talk of passing the torch, whose case is the one we should now be watching?
You never know, sometimes they sneak up on you, but some that bear watching are UMG v. Lindor Lava v. Amurao Capitol v. Thomas Andersen v. Atlantic Atlantic v. Boyer Arista v. Does 1-17 Atlantic v. Does 1-27 Elektra v. Doe and Arista v. Does 1-21 (case files here), but there are others too. Too many to mention.
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).
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.
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.
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.
That was the purpose I had in starting my blog. And it has worked. The lawyers representing defendants learn from each other, and stand on the shoulders of those going before us.
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.
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?)
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.
If you'd actually read the TFA you'd know she wasn't talking about legalities, she was talking about the emotions she'd felt as a result of this lawsuit.
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.
There are some concepts that one should dedicate their lives to: freedom, equality, free speech, freedom of religion, etc. People have laid down their lives for these.
Then there are some that, while important, do not merit spending your entire life on. The time and money spent on this issue was probably too much for her, and upon reach an agreeable settlement she probably said enough is enough.
Life isn't about money or lawsuits or even sticking it to greedy cowards. Life is about living.
Spending time with friends and family is priceless, and dealing with these greedy labels probably robbed her of enough birthday parties, outings, and nights of sleep.
At some point, for some issues, you need to pass the baton. If you want to continue the fight, then pick up the baton and yell a battle cry. Otherwise, do not question someone wishing to end a struggle that they do not want to spend years on end fighting.
Glad your post was modded "Insightful" because.... it is.
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.
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.
But I guess you're trying to say, "bring these points up whenever you're a target of an RIAA member company lawsuit!"
Yes but more than that. Only a handful of people get targeted. The rest of us need to fight in any way we can. Most importantly, (1) contribute money to the defense funds, (2) if you're a techie get involved in helping the lawyers, (3) write letters to congresspersons and to publications. And if you do get targeted, fight back.
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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.
I dont own any of the code I write at my day job and I certianly dont get recurring royalties from it.
Yeah but you get a salary. They don't.
Slight difference.
This is certainly much better than that schlock from Courtney Love.
Her report is not schlock.
Although I do find it disturbing that artists don't recognize an advance as a payment for recording.
In the first example I gave, forget about the advance. The artist's royalty still comes out to below zero.
I certainly wish that I could get a year's salary in advance with no more than a promise that I would show up and hey, if I'm not as productive as my company hoped for, oh well, that's the breaks (for them).
Most entertainers who rely on record companies are hand to mouth. They get the advance, and often -- that's it. It's not an easy life.
And while I do appreciate your efforts I'm also doing my own research and I'm coming up with artists who are more forth coming about royalties and the digital distribution "revolution" people around here keep cawing on about that shows that artists (in certain situations) are much better off when a fan buys a CD over using iTunes and the royalties that I have seen quoted there off-set these numbers by a pretty far gap.
I'm glad you're doing your own research. Last thing I would want is for you to rely on my anecdotal information. However, the record companies are even worse about accounting for digital royalties than they are about cd's... it's harder to audit that. So if your research tells you otherwise, you'd better do some more research.
It still all comes down to the original question of the oft quoted "0.02".
I think that was just a metaphor. In the example from that music lawyer, the number was "0.00" (actually less because there were still unrecouped "expenses".) In most cases the number is "0.00".
If these numbers in your example are set by a legitimate recording and it's sale than the artist actually walked away with 0.10 for doing nothing more than putting out an album regardless of it's sales.
That's an odd way of looking at it. Your analysis is way off.
1. "nothing more than putting out an album"? The whole thing is "putting out an album". That's the music. That's the creation. That's what it's all about.
2. The artist -- probably a band composed of 3 to 5 individuals -- did not pick up $50,000; they had to pay at least $10,000 to $15,000 of that to their manager and to their lawyer. And like the rest of us they had to pay taxes etc. And they had to split it 3 to 5 ways. And then they have to wait years and years, and probably will wait until eternity, to ever see a nickel.
3. But even if they had gotten 50,000, while the record company took out 624,000, most of which was pure profit to the record company.... that is ridiculous.
If you're a musician, and you sign up for one of those recording agreements in this day and age, all I can say is.... you're dumb.
In this example the artist sold 500,000 albums, and earned ZERO royalty. The 2-cents Courtney Love example is even more generous than this one. And this one is by no means atypical, except that it is very rare for someone to sell as many as 500,000 albums.
Here is a good analysis by a music lawyer of how the royalties get whittled down to zero. Here is a detailed article about how it works. Here is the detailed Courtney Love presentation. Some more information on how it works. Here is a report by the Recording Artists' Coalition.
Here's a discussion of some of the "expense" deductions: "there are many deductions made for items such as packaging costs; free goods; responsibility for the payment of producer royalties; reserve accounts; return privileges; midline, budget-line, record-club, and foreign royalty reductions; 90% sale provisions; new-technology rate reductions (which may even affect CD royalties); cut-out and surplus-copy provisions; video, tour support, and promotion expenses; recording costs; advances for not only the current album, but past albums as well; ownership of websites; and merchandising rights. In addition, if the artist is a songwriter, there are provisions in the recording agreement (known as the "controlled composition clauses"), which reduce and limit, among other things, mechanical royalties."
Proving what artists get paid for a recording should be a sight easier than proving the unknown.
And how would you prove it, other than by looking at the recording agreements, the royalty accountings, the royalty audits, and the settlements?
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.
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.
Heck, I'd let NYCL date any one of my sisters and smile.
I'm surprised they leave that up to you.
With all this talk of passing the torch, whose case is the one we should now be watching?
You never know, sometimes they sneak up on you, but some that bear watching are
UMG v. Lindor
Lava v. Amurao
Capitol v. Thomas
Andersen v. Atlantic
Atlantic v. Boyer
Arista v. Does 1-17
Atlantic v. Does 1-27
Elektra v. Doe and
Arista v. Does 1-21 (case files here),
but there are others too. Too many to mention.
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).
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.
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.
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.
That was the purpose I had in starting my blog. And it has worked. The lawyers representing defendants learn from each other, and stand on the shoulders of those going before us.
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.
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.
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.
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.
If you'd actually read the TFA you'd know she wasn't talking about legalities, she was talking about the emotions she'd felt as a result of this lawsuit.
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.
There are some concepts that one should dedicate their lives to: freedom, equality, free speech, freedom of religion, etc. People have laid down their lives for these. Then there are some that, while important, do not merit spending your entire life on. The time and money spent on this issue was probably too much for her, and upon reach an agreeable settlement she probably said enough is enough. Life isn't about money or lawsuits or even sticking it to greedy cowards. Life is about living. Spending time with friends and family is priceless, and dealing with these greedy labels probably robbed her of enough birthday parties, outings, and nights of sleep. At some point, for some issues, you need to pass the baton. If you want to continue the fight, then pick up the baton and yell a battle cry. Otherwise, do not question someone wishing to end a struggle that they do not want to spend years on end fighting.
Glad your post was modded "Insightful" because.... it is.
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.
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.
Good, but weren't those directed to judges?
Yes.
But I guess you're trying to say, "bring these points up whenever you're a target of an RIAA member company lawsuit!"
Yes but more than that. Only a handful of people get targeted. The rest of us need to fight in any way we can. Most importantly, (1) contribute money to the defense funds, (2) if you're a techie get involved in helping the lawyers, (3) write letters to congresspersons and to publications. And if you do get targeted, fight back.