Copyright Trolls

            We tend to want to think of Copyright Law as a dignified business.  Therefore I was shocked recently to discover that nearly forty percent (40 percent) of the copyright infringement litigation in this country involves the adult entertainment industry. 

            From my research (honestly) I see that companies such as Malibu Media (perhaps the largest player in this game) offer their videos for sale on the Internet.  Some unscrupulous users then employ file-sharing software to copy and share their films (does this sound familiar to the music industry?).  Much like the RIAA litigation of several years ago these companies have found ways to trace the infringements to various ISP addresses.  They then file copyright infringement lawsuits against the owners of these IP addresses (identified as John Doe in the complaint).  The defendants are then given the option to pay statutory damages (which can range from $750.00 to $30,000 or defend the claim in court.  Of course the next step is discovery in which the John Doe's real name gets revealed, leading to the possibility that the hapless defendant gets named in a federal lawsuit for downloading porn. 

            This really is a moral dilemma.  On the one hand copyright infringement is stealing, whether you're talking about an artist's life work or pornography and the adult film industry certainly has a right to protect its assets.  But the fact that the Copyright Act allows for the collection of statutory damages (at a minimum of $750.00 per title) and attorneys fees means that the plaintiffs are getting something of a windfall each time they are successful in these suits.  Some judges have taken note of this and there seems to be a new niche developing in defending against these suits. Of course even though they're not always victorious, litigating the claim for an innocent defendant (i.e. a grandparent or someone with an unsecure Wi-Fi connection) can be expensive.  The worst part to me is that these plaintiffs are holding this extra leverage over the defendants (pay up or suffer public humiliation. 

            These copyright owners have been called "copyright trolls" (defined as “an owner of a valid copyright who brings a copyright infringement action not to be made whole but rather as a primary or supplemental revenue stream") (see DeBriyn – Shedding Light on Copyright Trolls, 19 U.C.L.A. Ent. L. Rev. 79 (2012). I don't know if I would necessarily go that far.  Certainly no one accused the record companies of being trolls when they unleashed their torrent of lawsuits against file sharers (they were accused of many things but I don’t recall the word “trolls” being used.   But for some reason I find it shocking that this type of litigation constitutes so much of the federal court's docket.  However, it does demonstrate that there are a lot of ways to make money in the entertainment business. 

Steal This Music

I ran into a friend of mine at a local used record store last week.  I was going on and on about a Rickie Lee Jones EP but his mind was clearly somewhere else.  He had just seen the picture of David Lowery's performing rights royalty statement on the Internet; the one where Lowery demonstrated he had received $16.89 for one million plus  plays of his song "Low" on Pandora. 

             My friend is a music aficionado with refined tastes and leftist leanings and he was clearly pissed. "If the artists are making so little money why don't we just steal their music?” he asked. 

            My response to this question usually depends on how cranky I am.  I basically have three answers. 

            First: right, why don't we just steal the music?  That cat escaped the bag a long time ago.  Everything is available on the Internet and if you don't know how to find it, your teenager does.  Despite the fact that stealing music in 2013 is morally no different than when I walked out of a drugstore in 1967 with the latest 45s tucked under my shirt, it's certainly a lot easier. 

            Second: send the RIAA and their army of lawyers out to sue everybody.  Hell, given the kind of month I've had financially I might even sign up.  Despite the ludicrousness of suing college students and single mothers and despite the fact that even the RIAA seems to have stopped pursuing this strategy, until technology develops an effective way to stop illegal file sharing, mass lawsuits or the government taking down Internet empires like that which belonged to Kim Dotcom  (Megaupload)  may be the only truly effective way to stop spreading illegal music.  

            Third, the real answer is that the music business is now on the honor system and whether we like it or not streaming and similar services are not just the future, they are the present.  I don't particularly like this model.  I'm a dinosaur and like to own physical records but I can't ignore reality.  I wrote about this same subject a while back (http://tripaldredgelaw.blogspot.com/2012/07/in-defense-of-emily-white.html.)

            It’s a turf war and a number of battles are being fought right now over the issues between performing rights organizations, publishers, record companies and artists.  The field is a mess but the royalty situation may improve over time as these different battles shake out.  Everybody's fighting for a bigger piece of an ever-shrinking pie, but I can tell you from some of the recent talks I have heard on the subject, the fights are very serious and they are very real. 

            Artists like Lowery, who presumably were at one time signed to major record deals and major publishing deals really don't have much say in the matter, if they signed away their rights to their master recordings and musical compositions.  I could point out that Lowery just displayed his BMI statement which is just one piece of the pie. He should also be credited with royalties from his record label and his publisher but the fact remains, its still not a lot of money. Truly independent artists, those who still own the rights to administer their masters and their publishing interests can choose to avoid being on these sites (if they are careful in selecting their distribution methods).  The downside to this is that they risk losing exposure to a rapidly expanding audience. 

            It is all daunting but it really does feel like the beginning of a major technological shift. Should artists and songwriters be patient? No, of course not; they need to keep up the fight on all fronts…but we’re not helping them or ourselves by stealing.  

Not So Fast

Some time ago, I wrote a blog post about what I perceived to be a turning in the tide of the RIAA’s litigation against file sharers. I was probably a bit naive in my thinking. While the RIAA may have changed its strategy, the cases that it filed originally continue to evolve through the court system. Most recently, in the case of Sony BMG Music Entertainment, et. al. v. Tenenbaum, the U.S. Court of appeals reinstated the jury verdict of $675,000 against graduate student Tenenbaum, who had admitted to downloading 31 songs from Kaaza. The trial judge had reduced the statutory damages awarded against Tenenbaum to $67,500 (that’s still $2,177.41 a song) on constitutional grounds. Apparently the Appeals Court ruled that the issue of constitutionality was premature. Tenenbaum’s lawyer, Charles Nesson had convinced the District Court Judge that the high statutory damages provided by the Copyright Act violate the Due Process Clause of the U.S. Constitution. There may yet be some viability to that argument. However, liability in this case and others like it remains a slam dunk.

The moral to all of this is that despite the fact that suing single mothers and college students is not the way for the music industry to win the hearts and minds of the public and stop illegal downloading and file sharing, it is still illegal, and potentially expensive.

Thoughts on Soundgarden's Platinum album

About a year ago, I posted something here reacting in mock horror when the band Pearl Jam decided to release their new album on multiple formats, including the video game Rock Band. Now comes the news, reported in the Wall Street Journal, that Soundgarden have earned a platinum album for sales of their comeback retrospective LP Telephantasm, by bundling it with the newest release of the videogame Guitar Hero “Warriors In Rock.” According to the article, this album, which is Soundgarden’s first release in 13 years, was also the first album to go Platinum INSTANTLY, because none of the discs could be returned.

This appears to be a four-way win: for the band, Activision (manufacturer of Guitar Hero), Universal, and the RIAA. Is it a bold new marketing strategy, or is it a last ditch cash grab by a once revered, once relevant band who have not put out a record in 13 years? Does it destroy the legitimacy of gold and platinum status? Does any of this matter? I honestly do not know and am completely on the fence about all this. But I bet it would be fun to put the deal together.

Copyright Fatigue

I wish that I could say that I read last Sunday’s article in the Tennessean about Mitch Bainwol’s speech at the recent Nashville Digital Music Summit, with interest; but that would be a bit of a lie. Bainwol, the current chairman of the RIAA, was detailing the organization’s newest strategies against online music piracy, all of which seem like more and more sophisticated ‘whack a mole’ games. The same article spoke of the industry’s ever oppressive 360 deals, which seem to alienate artists in the same way that the heavy handed attitude towards piracy has alienated fans.

I don’t want to be misunderstood. I am a complete believer in intellectual property rights and as a copyright lawyer, I will diligently enforce my client’s rights against infringement. However, I am becoming more and more convinced that the way to combat piracy in the digital world is through education and making an attractive, accessible product that people actually want to buy and own. We are in the midst of a great cultural shift and nowhere is it more apparent than in consumer’s relationship to music. All of us geezers lament the demise of the traditional retail record store. Not only did these businesses keep us current on new releases and new artists but they also had a social component to them. As so many people have commented, this social component has now moved almost exclusively online. This is not just affecting the retail component.

In his influential email post, Bob Lefsetz recently reported the following facts:

Time spent listening to radio by 12-24 year olds has dropped from 2 hours and 43 minutes in 2000 to 1 hour and 24 minutes today.

Time spent surfing the Web has jumped from 59 minutes a day to 2 hours and 52 minutes.

Another blogger whom I read religiously, James Marshall (whose site is called “The Hound Blog”) recently wrote that though we miss record stores and newsstands, there is some compensation in the fact that we can dial up almost any obscure music and film footage on You Tube. This also should convince people that the consumers have migrated online and that they are going to access music online. The history of technology has shown us that if the music industry keeps trying to erect barricades online, the young technocrats will simply find ways to remove them, legally or illegally.

I think the answer is coming, somewhere in the near future. The outline is emerging. In the short term the battles will continue to be fought but I believe that the only way to really stop piracy is to educate the audience-show them how songwriters and artists actually struggle to make a living, teach them that this is a penny business and that their pennies make a difference. That’s got to be better than the current Big Brother approach.

The RIAA filesharing lawsuits: a new chapter

I have been meaning to write something about the creative legal assaults on the RIAA filesharing lawsuits. First, I was impressed by the fact that Jammie Thomas’ attorney Brian Todder had convinced the court to overturn the jury verdict in her trial in Minnesota and I was similarly impressed by a Harvard law professor’s constitutional challenge against the RIAA in his defense of Boston University student Joel Tennenbaum. I am not an advocate of illegal downloading, I just think that the file sharing lawsuits are not the right way to address the problems of the record business.

However, I was not prepared for the article in the December 19, 2008 Wall Street Journal which indicated that the RIAA was poised to abandon its legal assault on file sharing. The article did not specifically say whether the decision would affect all existing suits or simply apply to new suits. There is also some potentially troubling news about an alliance between the RIAA and various ISPs that sounds a little like the Patriot Act ver. 2.I can’t help but think that some of these recent developments made the RIAA less confident of their strategy. On the other hand, perhaps they finally realized the stupidity of suing their own customers. This was a bad idea to begin with. As far as I can tell, the lawsuits had no discernible effect on the worst offenders. The music industry needs to find a way to embrace the new generation of music fans and bring them into the fold. I don’t know if anybody has the idea but lots of people have good ideas. I am old enough to remember some of the great marketing Warner Bros. did in the late ‘60s and early ‘70s which made people life long fans of many of its acts. They basically gave away a lot of free music to anyone who would pay for postage. I can’t help but think that this was more effective than suing a bunch of college students and high school kids.