The story about how the record industry treats infringers and the lessons that photographers can learn from their efforts is so big, so good, we’re devoting 3 articles to it.
The recording industry is under many of the same pressures as the photo biz. Movie studios actually make the same efforts but it’s harder to analogize them to photographers. The record industry is somewhat closer in their copyright DNA to us. Part 1 is on why to sue if there is no likelihood of collecting money. Part 2 will be on what photographers and illustrators can learn from this approach. And to round it out, part 3 will be how the music industry turns around and uses this approach to screw photographers and illustrators.
So, the question “Why Sue if You Won’t Get Money?” is a great question and a great starting point. This often asked question assumes that the answer is, “You don’t” or “Why bother?”. Ahh but as Mr.Gershwin so aptly put it in Porgy and Bess, “It ain’t necessarily so”.
A barrage of cases filed by The Recording Industry Association of America (“RIAA”) and some record labels independently, demonstrate that deterrence can effectively be converted into income. In other words, real money. The RIAA represents many of the major record labels and is justifiably aggressive in protecting their members’ copyright rights, the lifeblood of their income stream.
Recently the RIAA filed suit against MP3Skull.com, on behalf of multiple well-known record labels—such as: Atlantic, Warner Bros. Records Inc., Warner Music Group Corp., Sony Music Entertainment and others.
Litigation was brought even though there was not much known about their target infringer – MP3Skull.com. The infringer was (note the operative word “was”) a music website. The names and addresses of some of its principals were known but not much else was known about them. Included was the name of one Monica Vasilenko, from Petrozavdsk (try saying that 5 times) located in the, Russian Federation. She seemed to have some sort of relation to the website MP3skull.com; but the plaintiffs did not seem to have anything concrete nor a good faith belief that a judicial victory would result in any sort of payment in dollars, rubles, or even chickens coming from MP3Skull or anyone on its behalf.
Long story short, the RIAA was pursuing the matter not to collect money but rather to close the site down and deter others from using the same type business model – making copyrighted music available without paying any licensing fees. The case was about deterrence and copyright protection. The issue to music lovers, to use an old cliche’, “Why buy the cow when you can get the milk for free?” RIAA is in the business of selling milk, so to speak.
By shutting down these pirate and similar sites, the RIAA hopes it forces listeners to more conventional sites, so its members get paid in the now conventional manners used by the recording industry. Whether payment is made to purchase vinyl, a CD, stream or download at least money is coming in to an industry that is under enormous financial pressure today. No payments were coming from the defendants to anyone in the recording industry. And no payments means Stevie Wonder can’t get new sunglasses, Bruce Springsteen a new pair of blue jeans, and Miley Cyrus a new iPhone 6 to Instagram with. (Well, maybe not for those 3, but you get the idea.)
Aggressively going after even these lesser known individuals or entities sends a message; “We will hunt you down and go at you hammer and tongs!” Their action deters individuals and future copyright infringers from taking similar steps to steal from artists and their labels. It shows that the music industry’s real interest lies in protecting their copyrights, and not just in collecting big sums from these potential lawsuits. Simply put, it gives infringers notice, strong and loud.
Persons who have no assets, think themselves judgment proof or operate in far off lands are not immune from the RIAA and its members closing them down. The money spent in the process is considered a necessary expense and well spent in an era when it has become socially acceptable to “steal music”. There is little doubt that these cases deter other would be infringers. Exactly how many miscreants are deterred is an unknowable number. The number lies between one and the number of angels that can dance on the head of a pin.
Another reason these cases are brought is to demonstrate to courts in any future cases that the copyright holder vociferously defends its rights including the expenditure of large sums of money. In effect, the spending of the money helps to increase in the minds of a judge or jury member, a high market value of the registrations being protected. Judgments obtained in prior cases concerning the same or similar works – especially by the same artist(s) – can be introduced at subsequent trials to further establish the value of the stolen intellectual property. Not doing anything, not pursuing these cases would also show the opposite, that there is no value in their product. In fact, doing nothing could prove to be harmful to the industry.
Another similar case was brought against Grooveshark.im. The RIAA has been playing the “Whack-a-mole” game with Grooveshark for quite some time. For those not familiar with the arcade game of Whack-a-mole”, you hit one mole when it raises it’s head and another one put up immediately. It never stops. Grooveshark is a music-streaming site, which was shut down in 2015 but was reincarnated very soon thereafter. Like the MP3Skull, the plaintiffs don’t seem to have much information regarding the operators behind the website nor whether there were any assets or funds to get.
The complaint filed with the court indicates that Grooveshark operated from Lima, Peru, and there were anywhere from 1 to 10 individuals that may or may not be the operators behind the website. Previously the court had ordered a permanent injunction against the owner of this site thus shutting it down and awarded the RIAA $17 million in damages as well.
Continuing with the Whack-a-mole analogy, the moles keep popping back up. Most recently in February 2016, yet another Grooveshark cloned website popped back up under the name “Grooveshark.im”. Again the RIAA stepped in on behalf of Warner Bros. Records Inc., Warner Music Group Corp., Sony Music Entertainment, etc., and filed another lawsuit against Grooveshark.im.
An article on the website www.digitaltrends.com notes, that “[t]he likelihood that the operator of the clone sites will actually pay up seems small, as the person or persons involved were never actually identified….” So again, why go after them? The answer is still deterrence, and an excellent long range music industry plan. They engage in this practice to protect their rights and reap benefits long-term.
These cases deter the number of further infringements in much the same way that stores which vigorously pursue shoplifters are less likely to be victimized by other would be shop lifters.
Our next piece will be on the subject of what photographers can learn from the techniques employed by the record companies. Photographers and illustrators can do much the same things. “Yes” we do know that record companies have way more money than photographers to engage in litigation and “yes” we will address that point.
And to give credit where credit is due, this series on the music industry was written with the invaluable assistance of Ms. Jaspreet Kaur, Ed’s law clerk and soon to be attorney at law.