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Apple, Wal-Mart, others slapped with lawsuit

updated 02:45 pm EDT, Fri September 21, 2007

Apple sued over punk songs

The former drummer of a 1980s punk band called The Ramones is suing Apple as well as Wal-Mart and other companies for copyright infringement because six songs he wrote were not authorized for distribution. Richard Reinhardt is naming the band's one-time guitarist, Johnny Ramone, Ramones Productions Inc, and the band's music publisher as defendants against unauthorized third parties. Those parties include Apple's iTunes Store, Wal-Mart.com's music download service, and RealNetwork's Real Store as well as Rhapsody services to use songs, according to Reuters. The plaintiff is seeking at least $900,000 in damages for profits the defendants made for using his songs in any manner, according ot the suit.

by MacNN Staff

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sixcolors
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09/21, 03:02pm | report spam | close Reply |
Ramones = The g**!

The Ramones sucked when they were around, and they suck now.

mytdave
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09/21, 03:09pm | report spam | close Reply |
talk to your label

Go bug your label and stop harassing the retailers. Retailers/distributors have contracts with the labels providing the content. If you don't want it sold, then go talk to the people making the material available to be sold - your label. Duh.

hayesk
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09/21, 03:11pm | report spam | close Reply |
Re: ramones

sixcolors, nobody cares whether you like the Ramones or your homophobia. This is not the point of the article.

To stay on topic, isn't this the type of thing their record label should be on the hook for? It's not like Apple ripped a Ramones CD and put it on their store.

They should be suing their record label, not the retailer.

Flying Meat
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09/21, 03:12pm | report spam | close Reply |
No, sixcolors

I believe you are looking in a mirror.

The Ramones, if you ever had the opportunity to see them live, were a very very good band, with solid skills, interesting social commentary, and entertaining tunes.

Because you could not appreciate them, doesn't mean they sucked, and I doubt you have any idea about any of the member's sexuality.

I am confused as to where his royalty checks have been going if he is suing. I'm also curious as to what the band's contract with their label says about distribution and promotion, but I guess that's what the laywers will have to figure out..

If you ever tried to drum like that guy, for more than 5 minutes, your ams and legs would probably change zip codes on you. :P

kerryb
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09/21, 03:20pm | report spam | close Reply |
hate to admit it

don't want to be one of those people that always sides with Apple but I don't believe iTunes makes contracts directly with music artists but with their labels. At first glance this suit like so many looks unfound or at best mis-directed. Without the Ramones there would not have been a London punk music scene, where do you think Johnny Rotten got the idea?

ttrostel
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09/21, 03:24pm | report spam | close Reply |
good faith effort

I realize you can sue anyone but if Apple made a good faith effort to obtain authorized licensed materials from the record label can they still be sued if they stop selling as soon as this matter is brought to their attention?

Herod
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09/21, 03:34pm | report spam | close Reply |
go looking to cleavelands

rock n roll museum too while your at it.

im sure the lyrics to some of your hit songs scribbled on binder paper are worth more than the 5 bucks you sold them for now.

SubPop
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09/21, 03:50pm | report spam | close Reply |
ignorance defence

I don't think Apple's contract with the music labels could (or should) protect them from a lawsuit such as this, if in fact Reinhardt owns the copyright to the songs that are being sold.

It's the same as saying that if I bought a car from Johnny and that car happened to be stolen from you, that you couldn't sue me for the return of the car because I have a contract with Johnny which gives me rights to the car. That defense doesn't hold water in any form of contract law.

Now having said that, the Ramones were publishing records and other media when Reinhardt was their drummer. I really doubt that he owns the copyright to any of the songs he is referring to in his lawsuit - the label probably owns the copyright (which is usually the case when you sign with a record label - they buy your copyright either for royalties or for a flat fee, but this is a whole other discussion in itself)

climacs
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09/21, 04:19pm | report spam | close Reply |
give us some credit macnn

"The former drummer of a 1980s punk band called The Ramones"

yes, I think all of us here know who The Ramones are...

climacs
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09/21, 04:21pm | report spam | close Reply |
sixcolors = teh loser

way to kick off the thread, sixcolors, by marking yourself as a complete and utter idiot.

I've never in my life heard anyone who knew anything whatsoever about rock music say The Ramones sucked. Combining that with a childish homophobic insult - nice one!

Rance
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09/21, 04:22pm | report spam | close Reply |
neat...

because "punk" is all about the money!

jhawk95
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09/21, 04:40pm | report spam | close Reply |
Not A Good Analogy!

"It's the same as saying that if I bought a car from Johnny and that car happened to be stolen from you, that you couldn't sue me for the return of the car because I have a contract with Johnny which gives me rights to the car. That defense doesn't hold water in any form of contract law."

The differnce with what you are saying above and the situation between Apple, the Labels and the Artists is that "Joe" was never given authorization by me to rent or sell my car. If he stole my car, he is a thief and a cheat.

The Labels on the other had, by contract, became authorized to do business on behalf of the Artists. If they abused their rights under their contract with the Artists, and then gave rights to Apple to something they were not authorized to do, then THEY are the ones who should be sued... not APPLE!

dwoodruff
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09/21, 05:12pm | report spam | close Reply |
hello douchebag...

...call your record distributor before your lawyer.

testudo
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09/21, 05:27pm | report spam | close Reply |
suits

Go bug your label and stop harassing the retailers. Retailers/distributors have contracts with the labels providing the content. If you don't want it sold, then go talk to the people making the material available to be sold - your label. Duh.

To stay on topic, isn't this the type of thing their record label should be on the hook for? It's not like Apple ripped a Ramones CD and put it on their store.

Who says that Apple and Wal-Mart have contracts? Maybe they're all ripping off this music, and when asked, they just say "Um, talk to the label!", and the label says "Talk to Apple!". Some drummer isn't going to know until he sues everyone (since everyone is, at this point, infringing), the case gets into discovery, and he can find out legally that the label was the one at fault (through the wonderful world of paperwork). Then the retailers get dropped.

But when you're going to get involved in a suit, you don't just make assumptions about who is or isn't responsible (otherwise you may end up spending a lot of time suing the labels on to find out that they never licensed it to apple).

I realize you can sue anyone but if Apple made a good faith effort to obtain authorized licensed materials from the record label can they still be sued if they stop selling as soon as this matter is brought to their attention?

Yes, for past infringement. And has Apple pulled the music?

testudo
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09/21, 05:36pm | report spam | close Reply |
Re: hello douchebag

The differnce with what you are saying above and the situation between Apple, the Labels and the Artists is that "Joe" was never given authorization by me to rent or sell my car. If he stole my car, he is a thief and a cheat.

The Labels on the other had, by contract, became authorized to do business on behalf of the Artists. If they abused their rights under their contract with the Artists, and then gave rights to Apple to something they were not authorized to do, then THEY are the ones who should be sued... not APPLE!

But you're making the assumption that the labels had a contract to begin with, and they abused the rights. And you're assuming Apple's not the one who abused their rights. Maybe they overextended and said "Hey, we got the Ramones" and then put everything up they had, regardless of what the contract says.

And if you didn't like the original car analogy, let's go for another one. Let's say you signed a contract with Fred to sell 5 of your Corvettes out of your garage. While he's at it, Joe comes over, sees a classic Ferrari in the back, asks how much it is, and Fred sells it for $200,000.

Joe takes the Ferrari and uses it to promote his new and exciting restaurant, drawing in folks from all over, and ends up selling the car to a customer for $500,000.

When you realize Fred's sold the car, are you just going to ask Fred for the $200,000? No, you want the car. And, since it was taken without your permission, you'll want not just the car, but the money made by Joe (not the $500,000, but the money he made using your car, say the restaurants income for the month he had it).

Flying Meat
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09/21, 06:05pm | report spam | close Reply |
erm. no.

I'm not going to want the money the third party made from my stolen car. When the car is returned to it's rightful place, the 4th party is out a car, and goes after the 3rd party. The third party can combine with the 4th party to go after Fred. Fred is hosed. I have my car back.

nat
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09/21, 06:30pm | report spam | close Reply |
gawd awful

jeesh testudo, who says apple doesn't have a contract? that's as lame an argument as you've put up in awhile. let's just all play the guessing game shall we?

robttwo
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09/21, 06:50pm | report spam | close Reply |
test(icle)udo

Once again, the harbinger of ignorance.

Do you have any idea how many lawyers Apple (and Wal-mart, and everyone else) has that checks through this stuff? Its not like Jobs is sitting around in Starbucks and some guys sells him the CD tracks out of his coat pocket.

Having said that - the artist always gets screwed by somebody. So, I can understand the suit.

Still, Testudo remains a...

Doofus.

chas_m
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09/21, 07:17pm | report spam | close Reply |
Ramones

"1980s punk band called The Ramones"

sixcolors may be an idiot with no musical taste, but so is the guy who wrote THAT sentence.

The Ramones put out their most seminal and influencial albums LONG before 1980. I believe their first one appeared in 1974, with about one per year following. 1980's release, if I'm not mistaken, was the Phil Spector-produced "End of the Century" which gained them MTV airplay and publicity for their cult classic movie "Rock n Roll High School."

Regardless of whether you personally cared for their music or not, their influence is undeniable. They fathered punk rock, were part of a quartet of bands that "made" CBGBs, destroyed the public taste for disco, and ushered in a revival of hard rock. As someone who lived through the 70s and 80s as an adult, my life is much richer for them having been there.

SubPop
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09/21, 10:10pm | report spam | close Reply |
robttwo

Wow. Making fun of someone's pseudonym. I don't know why anyone would expect Testudo's argument to be at all intelligent compared to that immense wittiness.

Do you have any idea how many lawyers Apple (and Wal-mart, and everyone else) has that checks through this stuff?

In the world of business (of which Apple is a very VERY savvy member, don't kid yourself) there is also the concept of Risk and Return and the concept of Cost vs Benefit. Say the risk of Apple violating an artists copyright unnkowingly is 5%. Then say that the total cost of violating all copyrights is a $20,000,000 lawsuit with legal costs of $1,000,000 and a 25% risk of loss. That means there's a 5% chance of losing $1,000,000 (or expected cost of $50,000) and a 1.25% chance of losing $20,000,000 (expected cost of $250,000). This means that if the present cost for Apple to have a legal team that "checks through this stuff" is more than $300,000 (which it probably is - one lawyer probably costs Apple that a year) then Apple is better off risking the lawsuit.

Why do you think they are the subject of so many patent suits? Just unlucky? Patent trolls reading Apple's mind? Remember, Apple is the only innovative company out there - are they magic, or are they ignoring patents with the knowledge that the expected cost of patent lawsuits is lower than the cost of licensing patents that it wants to use?

You can't assume just because a company is big that they necesarrily cover every legal base that exists - the smart companies only cover the bases that they can't afford to lose.

SubPop
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09/21, 10:28pm | report spam | close Reply |
jhawk95

The Labels on the other had, by contract, became authorized to do business on behalf of the Artists. If they abused their rights under their contract with the Artists, and then gave rights to Apple to something they were not authorized to do, then THEY are the ones who should be sued... not APPLE!

Your analogy fairs worse than mine because it makes a very fatal assumption: it assumes that a record label acts as the artists' agent in a music sale. This couldn't be further from the truth. In agency, artists would not give up their copyright in a record contract and all music sales would be between the artist and the consumer with the record label simply acting as an agent for the artist.

Most, if not all recording contracts result in the artist selling their copyright to the label and the label selling the music on its own behalf.

No agency relationship is created with regard to the sale of music. As a consumer, you are purchasing from the label, not the artist. This shouldn't be confused with the relationship between the artist and the label when it comes to touring and promotion, etc. This is a case where the label can act more as agent (still not as true - most artists contract with a different concert promoter unrelated to the label).

I am fully aware that record companies have agents that deal with artists. These agents represent the label to the artist, not the other way around.

SubPop
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09/21, 10:46pm | report spam | close Reply |
fying meat

I'm not going to want the money the third party made from my stolen car. When the car is returned to it's rightful place, the 4th party is out a car, and goes after the 3rd party. The third party can combine with the 4th party to go after Fred. Fred is hosed. I have my car back.

Unfortunately, the courts don't allow chain lawsuits (ie, you can't sue one party for a loss on a lawsuit against another party - except in the case of a breach of agency which would happen if you had an incompetent lawyer or other agent)

The system is designed so that the courts don't have to tend to matters indefinitely - there needs to be a beginning and an end to a lawsuit. The courts make the assumption that Party 1 is the victim, Party 2 is the Villain (who stole from the victim) and Party 3 (the purchaser of property from Party 2) is generally a facilitator to Party 2 and therefore isn't given the same protection (Party 3 generally made a gain in the transaction, Party 1 only lost). If Party 2 disappears and Party 1 finds Party 3 in possession of his property, Party 1 is entitled to the property back from Party 3, and Party 3 is responsible for suing Party 2.

This all makes sense so far, but it gets very unfair to a party if Party 3 resells the property to a Party 4. Because Party 4 is generally considered an uninterested third person to the crime, they are offered more protection than Party 2 or 3. Party 1 is generally not given the right to sue Party 4 for the return of property because Party 4 is removed enough from the original crime.

Party 1 is left to sue Party 3 or Party 2 for the return of the money from the sale, and that party is the end of the chain - if Party 3 is sued, they can't sue Party 2 in response.

testudo
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09/21, 10:54pm | report spam | close Reply |
usual arguments

jeesh testudo, who says apple doesn't have a contract? that's as lame an argument as you've put up in awhile. let's just all play the guessing game shall we?

I'm sorry, who says they do? Apple? Wow, the guy accused of violating the copyright says he didn't. Who'd guessed it.

And maybe you couldn't understand most of my argument, which is that Apple HAS to be sued, because until its proved they had a contract, they're in violation.

test(icle)udo

OMG! That's hillarious! Man, it must be great to be 14 years old. I bet you and your friends all giggle when someone says "p****" as well.

Once again, the harbinger of ignorance.

Do you have any idea how many lawyers Apple (and Wal-mart, and everyone else) has that checks through this stuff? Its not like Jobs is sitting around in Starbucks and some guys sells him the CD tracks out of his coat pocket.

And do you think Apple has their lawyers go over each and every song that they're posting on their store, checking each one off as being 'legit and under contract'? That's a good use of a lawyer's time.

And who says Jobs has anything to do with this? Do you really think I'm trying to blame Jobs or upper management (like they're all sitting around in the board room going "Hey, let's steal some music!". No, it could be as easy as a misunderstanding of what was licensed.

But that doesn't mean they're not liable.

Still, Testudo remains a...

Doofus.

Oh, snap! More name calling! I bet when you get out to recess on Monday, you and the kids will be laughing that one up!

rtbarry
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09/21, 11:57pm | report spam | close Reply |
testudo enjoys...

...dwelling in his bunker of ignorance.

rtbarry
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09/22, 12:00am | report spam | close Reply |
On another note...

...although i'm fully aware of the Ramones and understand their place in rock music history, I am not a fan. Never have been, even when covering their rudimetary songs for drunk people at a frat party full of douchebags.

That said, this article is laughable: "The former drummer of a 1980s punk band called The Ramones..."

lol. Who writes this stuff? Does a team of comedy writers work here?

Deal
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09/22, 12:24am | report spam | close Reply |
Where does it end?

Subpop, if you continue along those lines of thought, then the artist could continue to sue right down the line, including any individual who bought the songs and listened to them.

I don't think that is the right or legal path.

At some point a record company had the rights to the music. If it was then sold and sold and sold, those original rights still belong to whatever hands they passed to, unless the contract had a drop dead date.

Reading between the lines, it sounds more like this drummer wrote a few songs that the Ramones ran with. The record company recorded the songs and paid out dividends on them which may not have gone to the correct people. If the recording company sold the music under any kind of false pretense (knowingly or not), or possibly the band itself sold the songs under false pretense, then said drummer should be taking his case against those who did the deed and not those who just happen to have a lot of money.

rtbarry
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09/22, 02:52am | report spam | close Reply |
deep pockets...

end of story. they should add microsoft to the suit as well. just for good measure.

robttwo
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09/22, 08:29am | report spam | close Reply |
p*** from subpoop

we're not talking about patents, dumbass.

And although your "math" is superficially inpressive, it doesn't take into account the incredibly important factor of image and perception, especially as it relates to PR and (to stick with your financial analysis) stock prices.

News of a lawsuit damages each one. It may cost a company like apple $100,000 (or whatever) to settle a lawsuit, but it may cause millions in stock fluctuation and lost company image.

Learn about business before you spout your p*** next time.

Doofus.

robttwo
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09/22, 08:34am | report spam | close Reply |
testudo is a p****

wow, not only did I make you look an idiot with my argument, I also pissed you off by making fun of your name.

Once again, Testudo is outsmarted by an adolescent. And he remains a...

Doofus.

SubPop
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09/22, 11:27am | report spam | close Reply |
deal..

Subpop, if you continue along those lines of thought, then the artist could continue to sue right down the line, including any individual who bought the songs and listened to them.

That would be true (and scary) if the sale of a song to the consumer were a transfer of copyright - it's not. In the case of sales to the consumer, you are paying for the media that the song is on (you "own" that part) and a limited license to use the content.

The contract between a band and a record company is different - the band isn't just "licensing" their music, they are selling the copyright to it. That means in all respects, the music is the property of the record label, and no longer the property of the band. And part of owning the copyright also means you can see that copyright to someone else, even if you're not the original copyright holder.

Essentially this is what the drummer is asserting, and using the Party 1, Party 2, Party 3, and Party 4 rule. If it is found that he did not relinquish his copyright on the songs in question, Apple has to prove that they are Party 4 and not Party 3 (remember, Party 3 is a facilitator and is considered "almost" as guilty as Party 2)

Reading between the lines, it sounds more like this drummer wrote a few songs that the Ramones ran with. The record company recorded the songs and paid out dividends on them which may not have gone to the correct people. If the recording company sold the music under any kind of false pretense (knowingly or not), or possibly the band itself sold the songs under false pretense, then said drummer should be taking his case against those who did the deed and not those who just happen to have a lot of money.

But the legal argument still boils down to the same thing - someone was licensing a copyrighted work which they didn't own. Apple was one of these parties. Just because Apple is an intermediary doesn't mean that they aren't liable, unless they can prove that they were far enough removed that they are an uninterested third party (which then the drummer couldn't sue). This is for a court to decide, not for the plaintiff to determine before filing suit.

I would argue that Apple is Party 3, not Party 4 in most of these cases. The end consumer is Party 4 - this is why the end consumer cannot be sued even under your revised argument.

SubPop
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09/22, 11:34am | report spam | close Reply |
robttwo

And although your "math" is superficially inpressive, it doesn't take into account the incredibly important factor of image and perception, especially as it relates to PR and (to stick with your financial analysis) stock prices.

News of a lawsuit damages each one. It may cost a company like apple $100,000 (or whatever) to settle a lawsuit, but it may cause millions in stock fluctuation and lost company image.

Well, of course it's a simplified equation. That's why I used the word "if". Had I tried to take every possible cost into account on both sides, we'd have a forty page journal entry and a bunch of analysis that would still be speculatory.

Regardless of how hard it is to calculate the cost of a lawsuit, that cost is still finite - and it is a cost that is estimated by business everyday (quite accurately, but without the ability to run any real business modelling Excel plug-ins like @Risk on your OpenOffice installation, you wouldn't understand).

In the end, the cost of looking into this stuff still has to be less than the expected cost of not looking into this stuff, otherwise it makes no sense to do so.

Learn about business before you spout your p*** next time.

Heh heh.. seriously? Is this the best you got?

SubPop
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09/22, 04:12pm | report spam | close Reply |
oyeah, forgot a line..

we're not talking about patents, [insert witty intelligent slant here].

Who said anything about patents? I was talking about copyright.

Were you suggesting that a copyright does not hold the same tangibility as a patent, just because it is unregistered? Am I mistaken to say that a copyright can be bought, sold, or licensed the way a patent can? Does a copyright not fall under the same set of property rights as a patent?

Please enlighten me. I like a challenge; though you're not really proving much of an adversary in this debate. You should try making intelligent answers instead of just calling people names - someone might actually mistake you as someone who knows what they're talking about.

rtbarry
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09/22, 04:15pm | report spam | close Reply |
Labels...

...do not "own the copyright" to a song. The song is "owned" by its publisher in most cases, unless a publisher cannot be dtermined. Royalties due an artist are typically the publishing royalties owed the songwriter, not the artist. That is managed by ASCAP and BMI.

The labels typcially have a contract with a band to package and distribute a volume of work, and they are compensated at least double their initial cost + an ongoing share before an artist sees a dime from the labels marketing efforts and sales. That's why bands rely heavily on selling merch and touring.

Without actually reading the lawsuit, none of us knows what the f*** is going on here. Although ostensibly, someone decided to make a few bucks by going after the deep pockets, although any culpability likely lies with whoever in the chain broke the "publishing contract" with the plaintiff. That is not likely Apple or Walmart, as they are not responsible for distributing publishing royalties to artists and publishers. They pay the labels, who are the distributors and Apple's direct recipient of funds. Except in the case of the indie artists who deal directly with Apple.

If someone has a better understanding of the mechanics, I would love to hear it. And then explain how Apple is culpible.

rtbarry
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09/22, 04:23pm | report spam | close Reply |
subpop...

care to chime in again? your SN implies some modicum of industry knowledge (or at least fandom), but i don't see that in your posts yet.

robttwo
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09/22, 05:03pm | report spam | close Reply |
subpar, err, pop

you said: Am I mistaken to say that a copyright can be bought, sold, or licensed the way a patent can? Does a copyright not fall under the same set of property rights as a patent?

Yes, you are mistaken. They are VASTLY different.

Thanks for demonstrating that you actually don't know what you are talking about by trying to bluff through things.

Even a statement like "the cost is still finite" -- of course, how can cost NOT be finite. This is business, not theoretical math.

And you are right, calling bullshit p*** is witty. Obviously, it's more important for you to try to pretend you are right in your bullshitting, than to shut up and actually learn something. That is the defining attribute of a...

Doofus.

SubPop
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09/22, 06:08pm | report spam | close Reply |
rtbarry

care to chime in again? your SN implies some modicum of industry knowledge (or at least fandom), but i don't see that in your posts yet.

Actually, I'd been using this pseudonym for so long (15 years or so) that I forgot where I actually got it. I used to be a rabid Nirvana fan (not so much these days though - I think I wore too many CDs out when I was in high school)

Outside of being familiar with Copyright law, no, I don't know much more about the specifics in the music industry - but I do know how copyright (and other related IP law) works. Quite well. And I do know how it applies to the music industry, at least in its purest form.

SubPop
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09/22, 06:24pm | report spam | close Reply |
robttwo

you said: Am I mistaken to say that a copyright can be bought, sold, or licensed the way a patent can? Does a copyright not fall under the same set of property rights as a patent?

Yes, you are mistaken. They are VASTLY different.

Okay, aside from a) WHAT a patent protects compared to WHAT a copyright protects and b) how a patent is formed and for how long vs how a copyright is formed and for how long, how are they vastly different? It would be nice for this to not degenerate into "yes it is, no it's not" - I'd spend more time arguing with my four-year-old if I found that intellectually stimulating.

Thanks for demonstrating that you actually don't know what you are talking about by trying to bluff through things.

Even a statement like "the cost is still finite" -- of course, how can cost NOT be finite. This is business, not theoretical math.

Yet you still haven't refuted a single example I've given. The whole idea of expected cost comes from introductory-level economics. This isn't complicated s***. But if you can't even understand that, then I can understand how you would label it "bluffing".

The whole idea of economics IS "theoretical" math. And it IS relevant. And it IS used every day, by every large business in the world when making relevant business decisions (I allude back to the original argument of whether Apple *really* has lawyers checking this stuff out).

The only part that I've left out (intentionally, because this isn't meant to be a statistics lesson) is how expected costs are actually calculated - that delves into management science territory and is very heavy into statistics and monte-carlo risk analysis. Not really complicated s*** either, but does take a bit longer when you want to demonstrate real-life situations.

SubPop
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09/22, 07:05pm | report spam | close Reply |
rtbarry

labels do not "own the copyright" to a song. The song is "owned" by its publisher in most cases, unless a publisher cannot be dtermined. Royalties due an artist are typically the publishing royalties owed the songwriter, not the artist. That is managed by ASCAP and BMI.

Okay, I stand corrected. I was making a blanket assumption that the "Label" and the "Publisher" would be the same entity, and the "Artist" and "Songwriter" were also the same entity - there's obviously more complication in the industry than that.

In what situations would we not know who the publisher is? Or to go a bit beyond your specific assertion - what situation would lead to not knowing who owns the copyright to a song? It would come down to the last valid contract that specifically transfers copyright ownership, so would you say that such a contract can be lost? Would that result in the copyright going back to whomever owned the copyright before that contract?

The labels typcially have a contract with a band to package and distribute a volume of work, and they are compensated at least double their initial cost + an ongoing share before an artist sees a dime from the labels marketing efforts and sales. That's why bands rely heavily on selling merch and touring.

Absolutely true. Now as consideration for the contract, the band provides the work. Who takes ownership of that work - I can tell you right away, the one entity that for sure DOESN'T own the work is the band. Their copyright is SOLD as a result of the contract - it's not licensed.

Without actually reading the lawsuit, none of us knows what is going on here. Although ostensibly, someone decided to make a few bucks by going after the deep pockets, although any culpability likely lies with whoever in the chain broke the "publishing contract" with the plaintiff. That is not likely Apple or Walmart, as they are not responsible for distributing publishing royalties to artists and publishers. They pay the labels, who are the distributors and Apple's direct recipient of funds. Except in the case of the indie artists who deal directly with Apple.

If someone has a better understanding of the mechanics, I would love to hear it. And then explain how Apple is culpible.

This, I think, is where we have the biggest difference of opinion. You're assuming that because we're dealing with a civil suit in a realm where contracts happen to exist, that the buck stops at contract law (which would exclude the retailers because they aren't privy to contracts between artists and labels or publishers). Copyright infringement itself is not a breach of contract - it is a tort (and a crime in some countries, but not a very well enforced one), therefore you don't have to have a contract with someone to infringe on their copyright. This is another angle that a copyright lawsuit can take. This is why Apple and Wal Mart can still run th

SubPop
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09/22, 07:18pm | report spam | close Reply |
rtbarry continued

(Ahem... a bit of MacNN static on the line, I see). As I was saying:

This is another angle that a copyright lawsuit can take. This is why Apple and Wal Mart can still run the danger of being liable.

It follows like this: If a label does not own the copyright on a work that it claims to own, or if the label does not have the license to distribute the work or to grant such a license to others, then they cannot grant Apple or Wal Mart a license to distribute the work. If Apple or Wal Mart distributes a work that they do not have a license to distribute, then they are committing the tort of copyright infringement and are liable to whomever owns the copyright. The onus is on the "inadvertent" infringer to prove that they were sufficiently removed from the "original" infringement and that they could reasonably expect that the license they were given is valid (not a hard thing to do, but still needs to be done in court).

Going after deep pockets just comes from the same logic that asserts that a plaintiff should name everyone he reasonably can as a defendant in a civil case. There is significant expense and risk associated with launching a lawsuit - you don't want to be caught trying to squeeze blood from a stone (or worse, launching a case against the wrong party without naming someone who could be the RIGHT party). Besides, nobody has to name anyone other than a record label to go after "deep pockets" anyway. Record labels still have a bit of coin in their purse as well.

robttwo
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09/22, 09:25pm | report spam | close Reply |
hahah subpop

been busy on wikipedia now, have we??

half of what you said doesn't apply to what we are talking about, the other half doesn't make sense.

here's a hint: don't pretend you know "something" by referencing things which appear profound.

"monte-carlo risk management" - give me a break. (stiffling a laugh) By using that term you have only demonstrated you don't know what you are talking about.

Nice try, though. For a complete...

Doofus.

rtbarry
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09/22, 10:02pm | report spam | close Reply |
so subpop...

...you have justified, from the litigators standpoint, going after the deep pocket.

although deep pocket litigation is common, it is still bullshit, and that is the point i'm making. and people should call bullshit at every opportunity.

if it can be determined that an article of clothing you are wearing was produced using illegal labor practices, such as child labor, would it be "right" for you and the boutique to be sued or prosecuted (because you are incredibly wealthy and the plaintiff knew this)? you bought the article from a boutique on rodeo drive from a reputable shop on good faith. they bought it from a reputable distributor. the distributor was repping a legit clothing label. the label used a factory, who it turns out is unscrupulous, but is in china and difficult to go after.

so... how far removed does a party have to be? does anyone really expect an end user or a retailer who is 2, 3, 4 or 5 steps removed, and operating in good faith, to do detailed analysis and investiagtion of article they sell, among the potentially millions of items?

why would anyone ever bother to start a damn business???

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09/22, 10:23pm | report spam | close Reply |
sigh..robttwo

been busy on wikipedia now, have we??

Nope. Luckily I don't have to put out that much effort to make a solid argument against you.

half of what you said doesn't apply to what we are talking about, the other half doesn't make sense.

Okay.. So the half where we're talking about copyright law doesn't apply to a copyright case, and the half where cost is considered in a business decision (such as whether to pay for a legal team to watch over other people's copyrights or not - gotta stay on topic y'know) doesn't make sense, or is it the other way around?

here's a hint: don't pretend you know "something" by referencing things which appear profound.

"monte-carlo risk management" - give me a break. (stiffling a laugh) By using that term you have only demonstrated you don't know what you are talking about.

The term I used was "monte-carlo risk analysis". Monte-carlo risk management sounds pretty goofy and not something that businesses (except maybe Enron) would generally want to do (lessee - heads we do it, tails we don't). I wasn't on Wikipedia when I wrote that, but just for s**** 'n' giggles I took your advice and had a look at what was returned if I do a search on that phrase. You should probably re-examine your undergrad textbook:

"More broadly, Monte Carlo methods are useful for modeling phenomena with significant uncertainty in inputs, such as the calculation of risk in business (for its use in the insurance industry, see stochastic modelling)."

I guess I could've looked at Wikipedia and remembered the term "stochastic model" and really thrown you for a loop.

While it's unlikely you'll be able to understand anything at the website, you could also broaden your knowledge a bit by actually learning about the tools that accomplish this "giggle-worthy bullshit business analysis tecnique:" www.palisade.com.

On second thought, nevermind - you probably got your "business" diploma at some technical school and are probably still struggling with the concept of double-entry accounting.

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09/22, 10:54pm | report spam | close Reply |
rtbarry..

..you have justified, from the litigators standpoint, going after the deep pocket.

although deep pocket litigation is common, it is still bullshit, and that is the point i'm making. and people should call bullshit at every opportunity.

I don't disagree with you in the least - Going after someone "just because they have deep pockets" IS bullshit. I don't think anyone here would disagree that frivolous lawsuits are bullshit.

On the same token, there really isn't much of a choice for most people who have a legitimate beef that they need to bring to litigation - going against someone who doesn't have deep pockets isn't going to get you anywhere, and it won't even hurt them very much (whether you win or not, if they are broke, they won't have anything to pay you).

you bought the article from a boutique on rodeo drive from a reputable shop on good faith. they bought it from a reputable distributor. the distributor was repping a legit clothing label. the label used a factory, who it turns out is unscrupulous, but is in china and difficult to go after.

Well, using my now-tired example, it's pretty clear that you, as the end consumer, would be safe. In fact everyone except the factory and most likely the clothing label are safe (the factory for obvious reasons, and the label for contracting with a factory that was most likely the cheapest bidder without sufficiently looking into controls at that factory).

so... how far removed does a party have to be? does anyone really expect an end user or a retailer who is 2, 3, 4 or 5 steps removed, and operating in good faith, to do detailed analysis and investiagtion of article they sell, among the potentially millions of items?

Of course not - that's why the system was designed so that a sufficiently removed party is NOT liable - this was my whole point in the first place. The clothing label that has contracted the factory, however, SHOULD be responsible to ensure that the factory is operating above board. The label is probably paying lower than industry standard costs related to that factory, whereas those downline from them probably aren't.

why would anyone ever bother to start a damn business???

A saying had stuck with me years ago while learning about contract law: If you have never had to sue anyone, or if you have never been sued, you have never been in business.

Litigation - especially dealing with property or contract law - is just a part of business. One that most business owners have learned to live with.

rtbarry
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09/22, 11:01pm | report spam | close Reply |
further...

subpop said: In what situations would we not know who the publisher is? Or to go a bit beyond your specific assertion - what situation would lead to not knowing who owns the copyright to a song?

When labels present a volume/product to the retail channel, it is assumed to be properly licensed, otherwise no product would make it to market. Simply too cumbersome. Having worked for several years at a wholesale/retail distributor, I can guarantee you that NOBODY in retail is verifying copyright and publishing issues. If that were the case, there would be no need for publishing houses and record label royalty mechanisms and overhead. It would be redundant and make music even less timely and more expensive.

The publishers and labels exist almost entirely for this purpose, so they need to shoulder the responsibility for clearing their damn product.

subpop said: Now as consideration for the contract, the band provides the work. Who takes ownership of that work - I can tell you right away, the one entity that for sure DOESN'T own the work is the band. Their copyright is SOLD as a result of the contract - it's not licensed.

NOT necessarily true. When an artist has no clout, this is usually the case. Hence why a group like TLC can be amazingly successful from a public perception, and yet have no money. Their contract sucked and they were too dumb/naive/trusting to know better.

Once artists "beat the system", they can negotiate to control their destinies better and own their works, as well as their publishing. In many cases, they and their producers will fund their own songwriting and recording and then shop a virtually finished product to the labels. In that less common case, the labels serve in the role that THEY SHOULD ONLY SERVE - to market and distribute talent. And get their much smaller cut accordingly. But since lables are greedy dinosaurs, they fight against that. Hence why immensely successful artists like David Bowie and Prince tell them to go to h*** and do it on their own, until someone wises up and accepts their terms.

But this discussion is tangential to the original issue, which is: are Apple and Walmart culpible? It will be proven that they are not, in this case. As it should be.

rtbarry
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09/22, 11:07pm | report spam | close Reply |
So from your previous...

...response about deep pockets, you agree that the retailer is far enough removed. Right? That would be Apple and Walmart.

As for litigation, if the party you have issue with has no money, you have no one to legitimately litigate against. So stop.

In this case, The Ramones and their publishing company have plenty of money, but not enough for some lame past drummer to attract a greedy lawyer, so they added the big name parties. He probably has a right to get some small amount for "a few songs" he was involved in the writing of. But not enough to attract a decent lawyer on contingency.

So... the case is frivolous. Should not be happneing, unless said drummer were so sure of his stance that he would fund his own counsel to go after ONLY the appropriate party.

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09/22, 11:49pm | report spam | close Reply |
rtbarry..

FINALLY someone who can actually argue with facts rather than name calling - think you could school robby-boy while you're at it? It's not that I particularly hate the guy or anything - it's just that he makes Testudo look like a Mensa candidate, and, well, we just can't be having that cloud our judgement.

Thanks for the insight on the record industry - it fills a lot of gaps that my overly-simplistic argument was leaving.

you agree that the retailer is far enough removed. Right? That would be Apple and Walmart. As for litigation, if the party you have issue with has no money, you have no one to legitimately litigate against. So stop.

I agree the retailer is far enough removed in the example you gave. I also agree (but with some reservation) that Apple and Wal Mart are very likely also sufficiently removed. I say "with reservation" only because I don't really know how "cozy" Apple is with the labels and publishers, so I'm not totally certain that they are completely without responsibility (given that the iTMS business model revolves completely around distributing copyrighted materials, Apple probably has more responsibility to ensure they aren't infringing on the copyrights that they are working with).

I don't agree with the automatic assumption that this is a frivolous lawsuit where Apple and Wal Mart are concerned. Part of my explanation of whether or not a party can be considered sufficiently far enough removed from the original offense was that this is a question that must be decided by the courts - something that can only happen if the parties are brought into the litigation in the first place.

Basically, my argument is that if Apple or Wal Mart are indeed inadvertently infringing on the drummer's copyright, they should be responsible for proving exactly what your argument would be enough to prove - that they can't be reasonably expected to babysit these licenses. Remember, the entire iTMS business model revolves around distributing copyrighted works - how much responsibility should you expect Apple to take for these copyrights?

The drummer (or his lawyer) can't just assume that retailers are far enough removed simply because they are a retailer. They don't know how much influence the retailers have on the labels. Now once the court has determined to what degree Apple should be responsible for these copyrights, THEN there will be a precedent to make assumptions from for future lawsuits. Unfortunately if they settle (as Apple has sometimes been known to do), the water will remain murky.

This means that the only way for the plaintiff to determine whether or not the lawsuit is frivolous is to actually file the lawsuit and see if the retailers can prove that it is frivolous. It's may be bullshit, but it's really the only reliable way.

So... the case is frivolous. Should not be happneing, unless said drummer were so sure of his stance that

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SubPop
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09/22, 11:52pm | report spam | close Reply |
rtbarry

Ugh.. there was more but I just realized that I'm just repeating myself at the end there.. So don't worry about the last part..

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rtbarry
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09/23, 12:57am | report spam | close Reply |
So...

...if Apple and Walmart spend 100s of K$, as they almost have to do to fire up their legal engines, who absorbs this wasted cost? They're not gonna get this out of the drummer!

This means that the only way for the plaintiff to determine whether or not the lawsuit is frivolous is to actually file the lawsuit and see if the retailers can prove that it is frivolous. It's may be bullshit, but it's really the only reliable way.

Only really reliable way to do what? Waste money and time? No. It means that more of these cases need to be clipped immediately, and the plaintiffs/lawyers made to suffer for bringing these cases in the first place. That is one of the championing causes for legal reform efforts. Just because the current system is abused by fortune seekers does not mean we have to live with that status quo. We should reject it, and let the legal system focus on people who seek retribution from those who are truly responsible for wronging them, AFTER they have performed their own due diligence. Not by just throwing a bunch of s*** at the wall and seeing what sticks.

By your definition, there is no such thing as a frivolous lawsuit. You just sue EVERYONE and see what pans out. Lame and inexcusable.

Let me add, although I'm an Apple fan, I detest Walmart and all it stands for. But let Walmart be beat up for what they deserve to be beat up for, not this c***.

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09/23, 09:47am | report spam | close Reply |
rtbarry...

(dang - my last post caused this damn italics bug again.. speaking of outsourcing..)

[quote]--- Just because the current system is abused by fortune seekers does not mean we have to live with that status quo. We should reject it, and let the legal system focus on people who seek retribution from those who are truly responsible for wronging them, AFTER they have performed their own due diligence. Not by just throwing a bunch of s*** at the wall and seeing what sticks. ---

When I mean "that's the only way" I meant that there is no other choice for the plaintiff given the current system, and there hasn't been any way found (not yet anyway - I agree there should be, but it would mean giving up some pretty huge rights).

The problem with the system is that, despite all the "fortune seekers", it's really one of the most equitable systems out there. The reason that plaintiffs have to "throw s*** at the wall and see what sticks" is because a) suing someone is the only way to make them stop what they are doing (ie injunctions to stop Apple and Wal Mart from continuing their copyright infringement), b) discovery in a lawsuit is the only way to force another party to reveal all the relevant information that will help you determine if your lawsuit has merit.

In order for the reforms that you mention to put a significant stop to frivolous lawsuits, they would put an end to legitimate lawsuits as well. You're saying that only people who have all the facts beforehand should sue.

So I'm Johnny the drummer, and I politely ask Mr. Record Label, Mr. Apple, Mr. Wal Mart, and Mr. Ramones for all the contracts related to these songs because "I want to file a lawsuit against one of you and I want to know which one." Most definitely, all of them will know that the reforms are now in place and know that no lawsuit can be filed against anybody if he doesn't get those contracts, and they have no legal obligation to hand over those contracts, so the answer he gets is "f*** you very much".

Or you could change contract law so that all contracts are the property of the state and accessible to everyone in the country to be able to look over and see if they have any reason to sue anyone else. Of course then a registry would have to be built, and everyone would have to probably pay a fee just to create a contract and have it added to the registry. I don't think that would be a cheaper alternative.

The third option, I guess, is to make the plaintiff pay all the court costs for a frivolous lawsuit (which already happens, by the way, but only where the lawsuit is really grossly frivolous). Only this time, make it so that if you lose ANY lawsuit, you are responsible for all the costs on both sides, as well as any costs to the state for the court's time. I'm sure that'll cut down on frivolous lawsuits for sure.

Problem with this is that would also cut down on legitimate lawsuits lik

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09/23, 09:56am | report spam | close Reply |
rtbarry...

Problem with this is that would also cut down on legitimate lawsuits like the one Erin Brockovich launched against PG&E. More severely, it would also cut down on recalls of defective products (do you think Mattel recalled millions of potentially dangerous toys out of the goodness of their heart?). The fact that we don't make plaintiffs shoulder the cost of a lost lawsuit in most cases is because we recognize that it would do harm to one of the only tools the "little" guy has against big business.

[quote]--- By your definition, there is no such thing as a frivolous lawsuit. You just sue EVERYONE and see what pans out. Lame and inexcusable. ---

In a way, I guess that's almost my definition, since you can't really know if a lawsuit is going to be frivolous or not before you have all the information (that's why the courts have preliminary hearings, discovery, etc).

The reason that legal reform is so slow in coming is that they keep hitting the brick wall of "okay, how can we do this better - oh yeah, ignore the constitution or make the playing field unlevel" back to square one.

Personally, I don't think I would like to see what would happen to music artists, or publishers, or anyone else who can't afford a top-grade legal team but has to rely on contracts and copyright law to do business, if any of the reforms I'd mentioned ever became a reality. I know that if I was a distributor and no longer had to worry about being sued for copyright infringement, I know how hard I'd work to get the rights to sell music.

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09/23, 10:03am | report spam | close Reply |
rtbarry..

As far as suing just for deep pockets - Drummer boy is only seeking $900,000. The record label could easily shoulder this themselves, so there's probably another good reason why Apple and Wal Mart are named in this lawsuit (discovery? injunction? would these be legitimate reason, or should they still be left alone?)

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rtbarry
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09/23, 12:46pm | report spam | close Reply |
If it's...

...just for discovery, then fine. Which gets back to my earlier point "without reading the suit, no one knows what's going on."

But that is a diversion from the real issue that was sparked by this article and caused the ensuing discussion: is Apple or Walmart likely culpible in a case like this, if they are actually being sued for $$$, and not just for discovery. I still say it's a frivolous deep pocket case and I look forward to its dimissal, or its settlement in a fashion that does implicate the retailer in a case of publishing or copyright violation. That would be ridiculous, as I've illustrated earlier.

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10/15, 08:51am | report spam | close Reply |
Obviously,

most of the posters on this subject have never had their own copyright violated.

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Ramones = The g**!

talk to your label

Re: ramones

No, sixcolors

hate to admit it

good faith effort

go looking to cleavelands

ignorance defence

give us some credit macnn

sixcolors = teh loser

neat...

Not A Good Analogy!

hello douchebag...

suits

Re: hello douchebag

erm. no.

gawd awful

test(icle)udo

Ramones

robttwo

jhawk95

fying meat

usual arguments

testudo enjoys...

On another note...

Where does it end?

deep pockets...

p*** from subpoop

testudo is a p****

deal..

robttwo

oyeah, forgot a line..

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hahah subpop

so subpop...

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So from your previous...

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rtbarry

So...

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rtbarry...

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If it's...

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