Music License trouble... (stupid of me...)

[Doug Bennett]

Paul - ignoring the legal fine print everything I said stands - including $500 damages - which may be too high.

There are no statutory damages for non-criminal copyright infringement.

(fine print - there is a clause in the DMCA which purports to make extracting material from a copy-protected device a criminal offence whether or not the material extracted was copyrighted.)

[Paul Tauger]

Originally Posted by Doug Bennett

Paul - ignoring the legal fine print everything I said stands - including $500 damages - which may be too high.

There are no statutory damages for non-criminal copyright infringement.

(fine print - there is a clause in the DMCA which purports to make extracting material from a copy-protected device a criminal offence whether or not the material extracted was copyrighted.)

Doug, I don't know where you're getting your information, but you are simply mistaken.

§ 504. Remedies for infringement: Damages and profits

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

. . .

(c) Statutory Damages.—

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

§ 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

Okay?

[Doug Bennett]

you are referring to cases of criminal copyright infringement - even then the statutory minimum is $200 - $750 not $250,000.

Prior to 2006 the criterion for criminal liability for copyright offences was that it caused loss or damage of over $7,000 to the copyright owner. In 2006 this sum was reduced to $800.

The notion that you can face a $250,000 fine for copying a VHS tape and giving it to a friend is complete poppycock.

[Doug Bennett]

Paul - leaving aside the legalistic gobbledegook do you really believe that the artist in JJ's case could have sued him for $250,000?

To me that suggestion is completely absurd - as long as JJ acted contrite and reasonable $500 tops. The real damage would be to his reputation, self-esteem and peace of mind.

[Paul Tauger]

Originally Posted by Doug Bennett

you are referring to cases of criminal copyright infringement - even then the statutory minimum is $200 - $750 not $250,000.

No, I am not. Criminal copyright is addressed in 17 U.S.C. § 506.

Prior to 2006 the criterion for criminal liability for copyright offences was that it caused loss or damage of over $7,000 to the copyright owner. In 2006 this sum was reduced to $800.

Given your spelling of "offence," I have to ask -- are you referring to UK law? If so, I have no opinion at all. You are, however, completely wrong with respect to U.S. law.

The notion that you can face a $250,000 fine for copying a VHS tape and giving it to a friend is complete poppycock.

Doug, I have no intention of arguing with you. I've cited the applicable statutes -- you can look them up if you like, but I've reproduced them verbatim here. I'm an attorney who practices in this area and what I've said is the law is the law.

[Doug Bennett]

Plain yes or no please:

If the musician who JJ mentions had come to you and suggested he wanted to sue JJ could you in all conscience given him any assurance that he would be likely to get anywhere near $250,000?

Yes or no?

[Paul Tauger]

What don't you understand about this:

§ 504. Remedies for infringement: Damages and profits

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

Plain yes or no please:

If the musician who JJ mentions had come to you and suggested he wanted to sue JJ could you in all conscience given him any assurance that he would be likely to get anywhere near $250,000?

Yes or no?

I can't answer that without knowing an awful lot more about the facts of the dispute. It's also an irrelevant question because I always tell plaintiffs the same thing: "Don't regard an infringement action as a profit center. If the value of the right at issue is worth more than the cost of litigation, then sue. Otherwise, don't."

Attorneys don't provide assurance of a recovery.

Your point, evidently, is that even if JJ got sued, the plaintiff wouldn't receive a huge damage award.

Maybe. Maybe not. There's no way I could predict, at this stage, what a judge or jury would do. I can tell you, however, that your assessment of potential liability is completely wrong, your assessment of fair use doctrine is completely wrong, and, apparently, you have no idea of the costs of defending a copyright infringement action.

I will tell you this. Based on the very limited facts recited by JJ, I would tell a prospective plaintiff that this set of facts presents a very straight-forward case of copyright infringement.

I'll also say this. I'm revising my offer to try to represent any wedding videographer who is sued for this on a pro bono basis. I reserve the right to reject anyone as a client. I will never represent a client who thinks they know the law better than I do.

You have no more business advising anyone on dvinfo.net about the law than I have advising them about which pro camera to buy. Don't do it.

[Warren Kawamoto]

Woman Fined $1.9 Million for Downloading 24 Songs

Look here, this woman was fined 1.9 million just for downloading songs... she didn't even use them for a video or distribute them... just illegally downloaded them!

[Dave Blackhurst]

Originally Posted by Doug Bennett

Plain yes or no please:

If the musician who JJ mentions had come to you and suggested he wanted to sue JJ could you in all conscience given him any assurance that he would be likely to get anywhere near $250,000?

Yes or no?

Doug -
Simply put, law is by nature worded in ways oftentimes unintelligible - Paul is sharing very openly what the law states - it's helpful for those who "think" there's a yes or no answer - with law there is almost NEVER a yes or no answer!!! Even if there WAS today, a cock-eyed decision could change that TOMORROW... because the representing attorney was not an expert in the area and got sandbagged.

I think everyone here agrees that JJ infringed (even JJ, who was most heartily sorry for his error, and things worked out OK).

Whether a suit could have been brought is simple - YES, people can and will sue over the stupidest of things, like a pair of pants lost at a dry cleaners... and the costs to ANY litigant are extreme and place great risk to ANY litigant, win or lose, unless they have very carefully protected themselves in advance (business structure, etc.). This is why everyone here on the forum was holding their breath for JJ... and relieved when it became apparent that human kindness and courtesy prevailed.


Paul's point is not whether the litigant COULD recover (keep in mind a "judgement" might not be recoverable, but is a judgement nonetheless, meaning it could ruin the defendant for a long time), just that under the statutory scheme (which is designed to provide punitive effects against gross violators, but has no protections for the "little guy" who screws up), the provision is there to for the IP holder to ASK for the maximum damages provided by law. If the defendant walks into Court with an attitude or is guilty of such gross violations (think 150 yr sentence for Madoff), the IP holder very well might get it.

A wise attorney would evaluate the potential damages, the precedent value (which may be far larger than any monetary "win"), and the costs involved. BUT... if you cross a "deep pockets" IP holder or one who wants to set a precedent and sees an "easy mark", good luck, you'll be broke long before you "win" even if you're 100% right... and there ARE attorneys who will glady bill as long as the foolish client will pay to get their way, long after the economics fail to justify the litigation. If you know any unreasonable people, you'll realize they can access the Courts too... if they have the $$.

The danger zone here is that most WV types aren't filthy rich, and they would be "defending", meaning that there's no "easy out" if the other side wants to make an example.

Paul is trying to make clear the risks, for those who will take wise counsel. If you are having trouble understanding the code sections, don't feel bad, most would be in the same boat, and it should serve to make abundantly clear that the issues here aren't simple or "easy", nor answered in one word... such is "law".

[Dave Blackhurst]

Originally Posted by Warren Kawamoto

Woman Fined $1.9 Million for Downloading 24 Songs

Look here, this woman was fined 1.9 million just for downloading songs... she didn't even use them for a video or distribute them... just illegally downloaded them!

And there's the "make an example"...

[David Edwards]

The way I see it, if it is a well known artist chances are they are well to do, much much more than I am, so I have no problem using it.

I am also a musician and and spent many years playing live, recording and the like. I'd be honoured to have my music used on a video even more so to have it online where everyone could see it. Its a form of promotion. DJ's use boot legged music, they admit downloading it, yadda yadda.

I do pay for music that I use and disagree with downloading it for free.

If a well known artist wanted to use my video for their own promotion I'd have no problem. It would give me some fantastic exposure. They should be greatful for their sucess.

[Chris Hurd]

Not everybody sees it the same way you do, David -- there are those who prefer to protect their copyright. The argument that "they're rich and therefore they can afford to let me use it for free" is a completely invalid one, sorry.

And downloading music has nothing to do with anything going on in this thread -- it seems as though some folks are confusing the act of uploading as synonymous with downloading. It is not. Uploading is redistribution, which quite a different thing from downloading.

[Paul Tauger]

Originally Posted by David Edwards

The way I see it, if it is a well known artist chances are they are well to do, much much more than I am, so I have no problem using it.

Just so I'm clear, are you also okay with taking the well-to-do artist's car, too? ;)

I am also a musician and and spent many years playing live, recording and the like. I'd be honoured to have my music used on a video even more so to have it online where everyone could see it. Its a form of promotion. DJ's use boot legged music, they admit downloading it, yadda yadda.

I'm sure you're a good videographer. But what if the videographer in question is not? As a musician, would you want your music providing the soundtrack for a truly lousy commercial video project? Or worse, what if it's the "perfect" song and suddenly, thousands of people are using it for their wedding, event and corporate videos? It's all over the place, on good videos and bad.

However, that is a moot point because the law is quite clear: copyright gives a monopoly interest in the reserved rights, save for fair uses (which wedding video might or might not be -- that's an open question at the moment).

I do pay for music that I use and disagree with downloading it for free.

How do you see using the music in a video as different?

If a well known artist wanted to use my video for their own promotion I'd have no problem. It would give me some fantastic exposure.

Yes, but they're the well-known artist, and you're the not-so-well-known videographer. Of course you'd be thrilled. However, there is no quid pro quo for them if they do.

They should be greatful for their sucess.

So you advocate a kind of intellectual property socialism, is that right? ;)

[Dave Blackhurst]

Originally Posted by Chris Hurd

Not everybody sees it the same way you do, David -- there are those who prefer to protect their copyright. The argument that "they're rich and therefore they can afford to let me use it for free" is a completely invalid one, sorry.

And downloading music has nothing to do with anything going on in this thread -- it seems as though some folks are confusing the act of uploading as synonymous with downloading. It is not. Uploading is redistribution, which quite a different thing from downloading.

With many sources for LEGAL downloads for purely audio use, it would seem to me that some of those sources (Apple iTunes maybe?) might be a good place to start a "pull" campaign - let them know there's a demand for audio for use with limited distribution "personal" type videos, and currently no economic model providing it.

I should think if they know or even believe the demand is there, it would BECOME economically viable for a source of legal downloads to draft an "add on" agreement that the IP holders could opt in to - they would have a pretty good incentive to do so, and if one did it, it should quickly result in LOTS of available music without resorting to a Court battle royale? I would think the incentive to the artist, plus a cut to the download site would make the $$ signs start flashing here?

Obviously an additional add-on could be created for "uploaded" video - probably with a reciprocal link so anyone liking the audio track could go right to purchase it themselves - adding revenue to the IP holder, everyone wins. (I'd think that since JJ likes the artist, and he's such a good guy, any licensing JJ works out would run along those lines, so the artist makes more sales TOO!)


David, well... if you weren't in Oz, I'd drop by to "borrow" your widescreen and BluRay player later, OK? That is if you're a bit more well off than I... oh by the way where do you keep your root beer stash - I'm out...? Please, rethink what you're saying here, as it's not anywhere close to correct in any sense... it's just this sort of "justification" that is why things end up in Courts, because someone doesn't respect someone else's rights.


Paul - I think the question of having one's music track stuck on crappy video (or worse yet porn... you can see where this might go downhill fast) represents the one sticky situation in a limited A/V license. The only thing I would hope is that if such a license limited distribution to say 10-20 units, or multiple license purchases could go to say 100, an artist would have the reasonable assurance that any "damage" to their reputation would be limited... and offset by the aggregate licenses sold.

Uploaded video presents another challenge, but perhaps a system could be devised - would be a bugger to "enforce" for really popular songs though.

I see no way to control the QC of the derivative work. Then again they used to sell music on 8 track tape... didn't seem to hurt anything (other than the audio "quality")!

[Paul Tauger]

Originally Posted by Dave Blackhurst

I see no way to control the QC of the derivative work. Then again they used to sell music on 8 track tape... didn't seem to hurt anything (other than the audio "quality")!

Which is why copyright is an exclusive right. I've told this story here before: I know some people who spent 4 years writing a musical adaptation of "Catcher in the Rye." Once it was finished, they sent it to J.D. Salinger. He replied that he liked it, it was excellent work, but his position was that he had realized his conception of the story as a novel and he would not allow it to be translated into other media. That is his right on undercopyright, and 4 years of work by two people was for nothing. You have to consider that some composers simply don't want their music used for wedding and/or event video.