Michael Cieply, New York Times; Movie’s Owners Want to Know if a Film Is Fit for Framing:
"Spun around politics, sexual identity and cinema, “Kiss of the Spider Woman,” nominated for four Oscars and the winner of one in 1986, is the consummate art film.
But is it a collectible work of art? Those who own it are trying to find out.
In an unusual twist even for a picture outside the norms — its Oscar-winning lead, William Hurt, paused his red-hot career to play a film-struck homosexual for almost no fee when that still seemed more suicidal than savvy — David Weisman, the movie’s producer, and David S. Phillips, who joined him later in acquiring its rights, are planning in coming weeks to offer “Kiss of the Spider Woman” for sale as an artwork.
By that, they mean an object of beauty. The film is now available in its entirety — its copyright, negatives, prints, digital video masters and more — along with a carefully preserved archive that includes 313 boxes of 35-millimeter outtakes, five drafts of the screenplay by Leonard Schrader and a stack of rejection letters from studio executives who were sure that the movie would never work.
“I’m not aware of its having been done before,” said Grey Smith, who specializes in film collectibles at the Heritage Auction Galleries in Dallas, and is not involved in the “Spider Woman” sale.
“I wish them the best,” Mr. Smith added. “This could open up avenues for people who own rights to other feature films.”
After their commercial release, feature films are typically held in clumps, like the 4,000-title library owned by Metro-Goldwyn-Mayer, or the smaller collection of about 700 movies and television shows at Miramax Films, which is now being sold by the Walt Disney Company.
But independent films sometimes fall out of the system, as agreements under which they were licensed for distribution expire, and the copyright remains with, or is acquired by, individual owners who are not aligned with any of the major film companies.
Such outlying works normally have little value for large distributors, which may buy them for a relatively small fee, based on future returns in the home video and television markets, but which remain far more interested in fresh films or mass transactions."
http://www.nytimes.com/2010/07/10/movies/10spider.html
Monday, July 12, 2010
Friday, July 9, 2010
Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue; TechDirt.com, 7/8/10
Mike Masnick, TechDirt.com; Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue:
"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.
However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.
Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.
For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.
This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."
http://www.techdirt.com/articles/20100707/04163310101.shtml
"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.
However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.
Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.
For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.
This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."
http://www.techdirt.com/articles/20100707/04163310101.shtml
US could learn from Brazilian penalty for hindering fair use; ArsTechnica.com, 7/9/10
Nate Anderson, ArsTechnica.com; US could learn from Brazilian penalty for hindering fair use:
"Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.
A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.
So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.
As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.
Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.
Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.
Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."
http://arstechnica.com/tech-policy/news/2010/07/us-could-learn-from-brazilian-penalty-for-hindering-fair-use.ars
"Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.
A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.
So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.
As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.
Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.
Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.
Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."
http://arstechnica.com/tech-policy/news/2010/07/us-could-learn-from-brazilian-penalty-for-hindering-fair-use.ars
Judge slams, slashes "unconstitutional" $675,000 P2P award; ArsTechnica.com, 7/9/10
Nate Anderson, ArsTechnica.com; Judge slams, slashes "unconstitutional" $675,000 P2P award:
"Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.
In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.
Two for two
If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.
"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"
And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."
When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)
But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.
"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."
And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.
"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."
"We will contest this ruling"
We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.
"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."
Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.
In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts."
http://arstechnica.com/tech-policy/news/2010/07/judge-slams-slashes-unconstitutional-675000-p2p-award.ars
"Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.
In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.
Two for two
If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.
"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"
And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."
When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)
But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.
"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."
And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.
"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."
"We will contest this ruling"
We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.
"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."
Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.
In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts."
http://arstechnica.com/tech-policy/news/2010/07/judge-slams-slashes-unconstitutional-675000-p2p-award.ars
Men at Work flautist may sell house after copyright ruling; (London) Guardian, 7/9/10
Sean Michaels, (London) Guardian; Men at Work flautist may sell house after copyright ruling: Musician responsible for Down Under flute riff fears he may be forced to sell his home to pay legal costs and royalties:
"One of the most successful flautists in pop may have to sell his house. Greg Ham, the manwho [sic] helped Men at Work's Down Under to the top of the charts, fears this week's copyright ruling will force him literally out of house and home. According to an Australian judge, Men at Work must pay 5% of the song's royalties to the publishers of a classic children's song.
"At the end of the day, I'll end up selling my house," Ham explained to the Age newspaper. Thanks to his contentious flute riff, the Men at Work multi-instrumentalist currently receives a small percentage of the song's royalties; but not, he claims, for long. "We'll face massive legal costs ... I'll never see another cent out of [Down Under] again."
On Tuesday, 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.
Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."
"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."
http://www.guardian.co.uk/music/2010/jul/09/men-at-work-flautist
"One of the most successful flautists in pop may have to sell his house. Greg Ham, the manwho [sic] helped Men at Work's Down Under to the top of the charts, fears this week's copyright ruling will force him literally out of house and home. According to an Australian judge, Men at Work must pay 5% of the song's royalties to the publishers of a classic children's song.
"At the end of the day, I'll end up selling my house," Ham explained to the Age newspaper. Thanks to his contentious flute riff, the Men at Work multi-instrumentalist currently receives a small percentage of the song's royalties; but not, he claims, for long. "We'll face massive legal costs ... I'll never see another cent out of [Down Under] again."
On Tuesday, 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.
Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."
"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."
http://www.guardian.co.uk/music/2010/jul/09/men-at-work-flautist
Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'; TechDirt.com, 7/9/10
Mike Masnick, TechDirt.com; Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive':
"It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.
As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues."
http://www.techdirt.com/articles/20100709/11305410154.shtml
"It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.
As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues."
http://www.techdirt.com/articles/20100709/11305410154.shtml
Prince Declares the Internet "Completely Over"; Rolling Stone, 7/6/10
Daniel Kreps, Rolling Stone; Prince Declares the Internet "Completely Over": Singer refuses to sell new album '20Ten' via digital outlets:
"Last week, Prince announced that he was going to release his latest album 20Ten as an add-on to European newspapers and an upcoming issue of German Rolling Stone. In an interview promoting the release with England's Daily Mirror , the iconic songwriter reveals his improbable motive for the choice: he hates the Internet. "The Internet's completely over," says Prince, who will not sell his new album via iTunes or Amazon. "I don't see why I should give my new music to iTunes or anyone else. They won't pay me an advance for it and then they get angry when they can't get it." Prince goes on to compare digital outlets to once-influential juggernauts like MTV. "At one time, MTV was hip and suddenly it became outdated," he says. "Anyway, all these computers and digital gadgets are no good. They just fill your head with numbers and that can't be good for you."
Prince is putting his money where his mouth is. He recently took down his relatively new Lotusflow3r site, which launched in January 2009 to accompany the release of his Lotusflow3r triple-disc album. The site, which he created to combat pirated material on the web, allowed fans to pay a membership fee in order to access Prince videos, music and photos. However, 18 months after its launch, the site simply prompts an error page. Ironically, a decade ago Prince was one of the artists openly endorsing the Internet in an age of Napster, releasing his remix album Rave In2 the Joy Fantastic exclusively to subscribers of his NPG Music Club, which also came to an abrupt end in 2006...
As Rolling Stone previously reported, 20Ten will arrive via England's Daily Mirror, Scotland's Daily Record and Belgium's Het Nieuwsblad on July 10th, while the German edition of Rolling Stone will feature copies of 20Ten in each of its July 22nd issues. Along with copies of 20Ten, each newspaper or magazine will come with a rare interview with the artist. Prince will also reportedly tour Europe later this year. So far, there are no plans for a U.S. release, though Prince has reportedly had meetings with Warner Music to distribute the album."
http://www.rollingstone.com/music/news/17386/152792
"Last week, Prince announced that he was going to release his latest album 20Ten as an add-on to European newspapers and an upcoming issue of German Rolling Stone. In an interview promoting the release with England's Daily Mirror , the iconic songwriter reveals his improbable motive for the choice: he hates the Internet. "The Internet's completely over," says Prince, who will not sell his new album via iTunes or Amazon. "I don't see why I should give my new music to iTunes or anyone else. They won't pay me an advance for it and then they get angry when they can't get it." Prince goes on to compare digital outlets to once-influential juggernauts like MTV. "At one time, MTV was hip and suddenly it became outdated," he says. "Anyway, all these computers and digital gadgets are no good. They just fill your head with numbers and that can't be good for you."
Prince is putting his money where his mouth is. He recently took down his relatively new Lotusflow3r site, which launched in January 2009 to accompany the release of his Lotusflow3r triple-disc album. The site, which he created to combat pirated material on the web, allowed fans to pay a membership fee in order to access Prince videos, music and photos. However, 18 months after its launch, the site simply prompts an error page. Ironically, a decade ago Prince was one of the artists openly endorsing the Internet in an age of Napster, releasing his remix album Rave In2 the Joy Fantastic exclusively to subscribers of his NPG Music Club, which also came to an abrupt end in 2006...
As Rolling Stone previously reported, 20Ten will arrive via England's Daily Mirror, Scotland's Daily Record and Belgium's Het Nieuwsblad on July 10th, while the German edition of Rolling Stone will feature copies of 20Ten in each of its July 22nd issues. Along with copies of 20Ten, each newspaper or magazine will come with a rare interview with the artist. Prince will also reportedly tour Europe later this year. So far, there are no plans for a U.S. release, though Prince has reportedly had meetings with Warner Music to distribute the album."
http://www.rollingstone.com/music/news/17386/152792
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