Wednesday, March 11, 2015

"Blurred Lines" Violated Copyright, Why Was RIAA-style Justice Not Served?

Musician vs. Musician Lawsuits Play Out Like...

Yep, it is officialRobin Thicke's "Blurred Lines" was not only the longest running hit single of 2013 but is also an infringement of Marvin Gaye's song "Got to Give It Up". The court and jury did not go as far as saying that the song was "willful infringement" which would have opened the door for much larger fines.

So you might be wondering how much the guilty parties were forced to pay? The total copyright damages were $4 million and forfeiture of $3.3 million in profits. They were also fined $9,000 in statutory damages... just to make it clear they were wrong. This sums up a grand total of $7,309,000 USD or about $0.49 per copyright violation (according to Wikipedia's article about the song stated it sold 14.8 million copies).

We'll come back to that in a minute.

Musician vs. Listeners Lawsuits Play Out Like...

The RIAA has sued individuals for as much as $4.5 million and been awarded $675,000 against individuals sharing 30 songs (see Sony BMG v. Tenenbaum). In that case the court said that awarding $22,500 per song (only 15% of the total maximum penalty for willful violations) "comports with due process". The RIAA has not been totally evil, looking at Capitol Records, Inc. v. Thomas-Rasset you can see that they discounted a $1.9 million infringement award down to $54k (or from $80,000 per violation to $2,250 per violation).

So now I present the following thought. Why don't the courts treat musicians like the RIAA and other pro-copyright organizations treat their customers? If musicians are truly ok with their record labels going out and putting a $675k debt on a 20 year old college student who shares 30 songs, why don't they hold one another to the same standard? The college student wasn't trying to make money on his copyright infringement, whereas the writers of "Blurred Lines" were looking to make Scrooge McDuck amounts of money.

How Musician vs. Musician Lawsuits SHOULD Play Out

I am no legal expert but - in directing many successful patent prosecutions - I will say I know a bit about intellectual property laws. That being said, here's my opinion on how things should have played out.


It appears the court has found that "Blurred Lines" counts as an infringing work with remedies described in Section 504 of the current copyright laws. It appears that the lawsuit was filed asking for § 504(a)(1) damages ["the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b)"] wherein subsection (b) states "The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.In establishing the infringer’s profits,the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
My understanding is that this is not how consumers are sued. They appear to be sued under § 504(a)(2) which awards damages according to subsection (c). Unfortunately, § 504(c) applies to each work that is infringed and does not address how many times it was infringed (i.e. how many copies). I have also read in various places that if more than one work was violated that penalties would apply on a per-copy basis.
<TL;DR Legalese>

Remember when I said that the current judgement awarded comes out to $0.49 per copyright violation? That's because copyright is a set of rights that a person has over the fruits of their original work. Of those rights, two are quite relevant to this case. The exclusive right to reproduction of the original work, and the exclusive right to make derivative works (like remixes) of the original work. When a derivative work is made it gets its own copyright. The new copyright includes its own right-to-reproduce however, if the derivative work was not authorized then it is a single infringement of the original work. When the derivative work is reproduced (a copy is made) it can be argued (and has been so in the past) that each copy made is an act of violating the original work's exclusive right to make derivatives. Thus, 14.8 million copies sold is the same as getting busted with 14.8 million bootleg movies or a hard drive filled with 14.8 million illegally downloaded songs... but I digress.

Lets say that Robin Thicke and friends were proven to have infringed a second copyrighted work, then each copy of "Blurred Lines" sold could be counted as a separate (non-willful) violation with a penalty ranging between $750 and $30,000. Now here is the fun part, lets pretend we are the RIAA and multiply 14.8 million copies by $30,000 and file a $444 billion dollar lawsuit! Yes, the math is correct! The infringing musicians should not worry as the courts will most likely reduce the damages to a more reasonable $33.3 billion ($2,250 per copy just like everyone else).

Copyright Reform Needed

I think explicitly moving copyright remedies from "per-work" back to "per-copy" would be an effective way to force copyright reform. The cost per violation would drop and infringing consumers would be charged amounts that actually reflect the economic damage their file-sharing activities cause to musicians and record labels. In the end, the economic impact of a $33.3B judgement to major record label is about the same impact as a $675k judgement has on a 20 year old college student. After all, if seeking copyright justice is about destroying peoples lives, shouldn't it destroy the lives of multi-millionaires just as effectively?

Here are some more links for thought:


Matt Avery said...

Nicely written.

I think what David Bergman wrote is true: The world is much bigger than you.

Dinh Ha said...

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tổng đài tư vấn pháp luật
dịch vụ thành lập công ty trọn gói

Nhìn Khúc Bình đang quằn quại trên mặt đất, bộ dáng thê thảm khiến người ta không nỡ nhìn vào, bọn người Lưu Vân Viêm trợn mắt há mồm, có cảm giác như đang nằm mơ vậy. Không ai có thể nghĩ ra, Sở Dương xuất kiếm vậy mà lại tàn nhẫn đến thế!

Một chưởng kia thì không nói, nhưng một kiếm trước đó chẳng khác nào là trực tiếp phế bỏ Khúc Bình!

Trên mặt Sở Dương thầm hiện lên một nụ cười. Xuất kiếm đúng là do bất đắc dĩ nhưng Kinh Hồng Vân Tuyết Bộ cùng một chưởng kia, đương nhiên có dụng ý khác. Bộ pháp kia dùng để né tránh Khúc Bình, nhưng cũng âm thầm cho người nhìn.

Mà mục đích của một chưởng kia, khí âm hàn ẩn chứa trong đó chính là nhắm vào . . . Thất Âm Hội Tụ Chi Địa!

Thất Âm Tuyệt Thần Chưởng!

Đó chính là bí mật bất truyền của Thiên Ngoại Lâu. Cũng là bộ công pháp có uy lực lớn nhất! Nguyên nhân lớn nhất các đời chưởng môn đệ tử đều tiến vào Thất Âm Hối Tụ Chi Địa chính là lợi dụng thất âm cực độ thâm hàn để tu luyện Thất Âm Tuyệt Thần chưởng!

Sở Dương đánh ra một chưởng này, cũng không phải để công kích Khúc Bình, bởi lúc đó Khúc Bình đã mất đi năng lực chống đỡ rồi, thừa hơi đánh ra một chưởng là có dụng ý gì? Nguyên nhân thực sự. . . Nói cho người đang âm thầm quan sát: ta so với những tên khác đã vượt lên trước một bước rồi!