Recording Industry vs The People: New book, "Indie Band Survival Guide", tells musicians how to survive without record labels

Friday, August 15, 2008

New book, "Indie Band Survival Guide", tells musicians how to survive without record labels

Just learned of a new book that's just come out, called "Indie Band Survival Guide", which gives musicians ideas on how they can survive without record labels.

Can't wait to read it.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

2 comments:

Unknown said...: Written by a long time GrokLaw participant!! Synergy is good...; August 15, 2008 at 4:05:00 PM EDT
Kathleen Williamson said...: One of my best friends wrote the first version of this book back in 1980 when the technology was very very very different. The book was titled "How to Make and Sell Your Own Record" by Diane Rappaport of Jerome Headlands Press. Diane has recently declined to write a new edition (11th) because she has moved on to other genres and, I suspect, the entire industry has been revolutionized several times since the first edition. Now the velocity of change can only be tracked by the most devoted music techies. To compare these two books is yet another example of how every morning we each wake up feeling like Rip Van Winkle. The velocity and dynamics of tech/culture change is dizzying. It’s very exciting and I welcome well written and up-to-date insightful books for all levels of aspiring and pro musicians. I am an attorney, anthropologist, and songwriter and, thus, have many angles from which I read something like this. When Diane first wrote "How to Make and Sell" it was pretty much the first book on the block. Also, there was only vinyl, commercial radio, and physical distribution. Now the How-To- Music book industry is as full of products and mashups as the music industry itself. An enormously profitable secondary market has developed that sells goods and services to would-be musicians and songwriters (including my entlaw services!). I just did a quick Amazon search of this book to see if it addresses an emerging tech/copyright interconnected question that has been bugging me and which I've only had glimpses of time to dig into.

The indie music that is being downloaded (as well as the major stuff) doesn't have notices/labels attached prominently to the digital files, thereby, creating a world of arguably innocent infringers. This is a flaw in the RIAA prosecutions against little people who get duped into thinking they aren't committing copyright infringements when they buy services from sites like mp3rocket.com (a very sleazy and deceptive site which would be confusing to anyone but a good copyright lawyer and about which the RIAA chooses to look the other way and, instead, trawl for infringers to sue). The RIAA lawsuit complaints claim that the "infringers" have been put on notice of the copyright ownership because all of the CDs and albums that they have been produced have the notices on the labels and covers. However, the digital files do not. I have often received unsolicited email attachments with a cute song attached which has no identification of composer or performer. Sometimes I write back to the friend who sent the cute tune and enquire about the artists. It’s not unusual to get a response that the sender doesn't know, got it from another friend, will write and ask the other friend if they know, and then the conversation dies there. So, in sum: the RIAA has some problems if really put to the test re: innocent infringement.
Secondly, as a songwriter, especially as an independent who doesn't have MediaSentry in my pocket, I suspect my cute songs have been downloaded from the various cdbaby licenses that have been showered to every mp3 start up since Itunes and quite possibly have been emailed around as novelties or interesting songs without any identification. When I wrote to CDbaby about it, I received a series of answers about DRM but I was not asking about DRM; I was suggesting that they put labels and copyright notices into the actual digital files which are immediately obvious to any user. The only response I got to that was a question about whether I wanted to unravel my entire agreement with CDbaby, which would have entailed all the sublicenses to everything from itunes to payplay. (Aside: Payplay actually took the time to not only distribute my digital music without copyright notices but also made a copy of my album cover AND REMOVED all of the copyright notices I meticulously wrote in. Their only solution to the problem was to treat me like a 16 year old child, ignore all the free copyright advice I was giving them, and offer to take my recordings off of their service).
Being too busy to start that all over, the question and concern has been in abeyance (while I was busy doing things such as pro bono battling in the RIAA v Weed matter, ironically). Upon taking a quick search in Amazon of this new book, I see lots of redundancies though helpful info for musicians, old or new in the changing tech and distribution world. However, I don't see any info about how to ensure that the downloads that are spawned by the digital distribution spray are clearly marked, identified, copyright noticed. If anyone reads this book and finds info therein about this, please post it here. I think it’s a very important matter for composers/musician/ independents. Any attorneys reading this post, I appreciate your thoughts and insights. It may be that in all my uber-busy-ness I am overlooking some fab technology that is helpful to solve this problem. If there is, other musicians should know about it so that their work will be protected as it flies across the cyber-universe. Only the independent musician him or herself will really care about this and they should not expect their online digital impersonal distributors to give a hoot.
Kathleen Williamson, Esq.
www.williamsonandyoung.com
Obviously not proofread to save time.; August 18, 2008 at 11:58:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove