Judge grants Happy Birthday lawyers $4.6M, citing “unusually positive results”
arstechnica.com
arstechnica.com
Gotta love it when a lawyer (judge) loves another lawyers (plaintiffs) work so much, that they tell the losers that they sucked so badly that they are going to get screwed even more.
What annoys me about this is that the extra payment does not appear to have been decided based on losses, but more punitive because the song should possibly never have been copyrighted (which I agree with).
Isn't it enough to win and get payment for the work? Do they need to be given some windfall beyond standard judgement? I'm happy for the ruling, but it doesn't necessarily seem like a fair judgement to say that they were just that good.
Basically, the judge is saying that based on the amount of work and skill the lawyers used, they are deserving of a bigger slice of the existing pie... not a whole new pie.
I am assuming the rest of the settlement is going to the class members... all of the people who have had to pay fees for using happy birthday.
That's not how it works under the statute. In this case the amount of the attorney-fee award was computed as one-third of the settlement amount (this is the "lodestar" mentioned in the article), then the judge added a kicker for exceptional results; that's the traditional way it's done in the U.S. on the rare occasions when attorney fees are awarded [0]. But under 17 USC 505 [1], the attorney-fee award would be in addition to the settlement amount.
[0] http://www.americanbar.org/content/newsletter/publications/g...
[1] https://www.law.cornell.edu/uscode/text/17/505, explained at length in, e.g., http://www.rbs2.com/caf.pdf
deserving of a bigger slice of the existing pie
How are you going to deter fraud if the only penalty is a reimbursement of the stolen money? That incentivizes everyone to commit fraud because the penalty would be to go back to status quo ante. You'd be a sucker not to commit fraud.
Now granted I agree with you, that there needs to be a deterrent, but it doesn't seem like the article says that is the reason for the higher damages. It says that, it's for public good basically. What I'm questioning is the basis for the increase in damages.
The most glaring? The copy of the original score supplied during Discovery by Warner? Perfectly clear and legible. Except for (shocking) the Copyright/Authorship line at the bottom, which was smeared beyond recognition.
Warner resisted supplying the original, saying the copy was a perfect facsimile. When eventually ordered to do so, (shocking), the Copyright/Authorship line was perfectly legible too, contradicted Warner's claim, and showed that Warner had had no authority or right to be licensing performance.
"The "smoking gun" in the whole thing was the copy of the original publication that Warner presented to the court. It has a smudged-out piece of text that they claimed no knowledge of. Someone found a copy of the book in a library, and the text wasn't smudged out. It was the original copyright information."
- https://entertainment.slashdot.org/story/15/12/10/2156223/ha...
Oh, here we go, smoking gun:
https://www.techdirt.com/articles/20150727/16042931768/happy...
(see images on the above).
To me, reminiscent of performance awards within a company.
"X & Y took on risky/ailing project Z that everyone else wrote off, and hit it out of the park. Bravo"
Happy Birthday, Dimebag Darrell. He would've turned 50 today.
Surely the contribution of these people to civilization is well correlated with the economic benefits reaped. Which is encouraging because we want to inspire future generations to such awesome achievements!
I'm not sure whether you're being sarcastic or not.
But I actually do agree that the lawyers in this case have provided significant economic benefit to the public. "Happy Birthday to You" is almost universally known in the English speaking world, even by children, and it's frequently performed in public. Up until now, restaurants and youth organizations have have often discouraged their staff from singing this song, and of course, people who did sing it publicly were at risk of getting letters from lawyers.
Now several hundred million people can just sing the song without worrying about copyright issues. I have no problem with the lawyers getting paid well.
On the other-hand the entire branch of law in this case is providing no-benefit to civilization and it's only acts as a funnel for the transfer of wealth between entities (lawyers facilitate this transfer and benefit from it's continued practice which is definitionally parasitic since nothing of value is being created in the process).
A world without copyright is not one in which studios still make the AAA movies people want and just distribute them into the public domain. It's one where you can only watch movies in theaters, or stream them onto locked down devices like Apple TVs instead of general purpose computers.
It's not a black or white thing, although I guess that's what supporters of endless copyright extensions would like to convince you to think. I concur with the conception of copyright which dictates that it should protect or make worthwhile the upfront risk and investment to produce something of value.
Would having a much more limited span or at least capped to the life-time of the creator versus 120 year copyright have prevented happy-birthday or mickey-mouse from being created? I think the answer is unequivocally no.
Neither is it true that you can't have transactions in software without copyright protection (Redhat, Mozilla is proof enough of this). Meanwhile larger companies with all the benefits of copy-right protection are making most of their money from Cloud Apps and Web services anyways (Facebook, Google) even Microsoft the traditional major player in the 'for-sale' software business is moving away from it towards cloud offerings.
> A world without copyright is not one in which studios still make the AAA movies people want and just distribute them into the public domain.
What is the term ( in length of years) across which Studios calculate the gross revenue vs. expenses from their production? I don't have a graph in front of me but surely they calculate that revenue must top expenses within the release year to justify expenses and it's a highly diminishing slope after that. Netflix is already effectively locked down (and clearly the future), - I don't see how copyright is preserving any kind of liberties here.
I'm not convinced that copyrighted software is, indeed, a good thing. The FSF's philosophical documents are pretty persuasive.
> The world benefits enormously from just being able to sell software, movies, etc. as you would a physical product.
Does it though? I've found that the best, most pleasant, most powerful, most flexible software I use is free.
> It's one where you can only watch movies in theaters, or stream them onto locked down devices like Apple TVs instead of general purpose computers.
Try streaming movies on FreeBSD, Linux desktops or anything which is not macOS, iOS, Windows or Android!
The GPL, at the core of the FSF mission, explicitly and deliberately relies on copyright law for its legal effects.
Copyrighting software is terrible for society. But given that copyrighting software exists and can't easily be gotten rid of, what can we do to minimize the damage and keep software free (as in freedom)? I think the GPL is a good answer to that question.
In a world without copyright, large corporations would have free rein to slurp up all the world's public software, extend it however they like, create whatever remaining functionality they needed, and publish none of it. None of what the GPL's copyleft attempts to accomplish would be possible.
That's only true of a world without copyright where no other system of rules around software existed. It's trivial to propose a set of rules that requires code sharing without copyright. In fact, such a set of rules would probably be much simpler than the GPL. Copyleft is really a convoluted hack on top of copyright.
Without copyright, arguably copyleft would be unnecessary, since the whole purpose of copyleft is to prevent non-Free code from being built on Free code, and without copyright, everything would be Free.
(OTOH, given the GPLv3, maybe that's not correct in the FSFs view, since the GPLv3 implies that "Free" has a broader and industry-dependent definition that merely eliminating copyright-based limitations wouldn't satisfy, so maybe the FSF does need to be copyright maximalists to advance their idea of Freedom-compelled-by-copyleft-license.)
Or no commercial entity would publish source.
I'm not sure you're knowledgeable enough on the subject to make that claim.
> You can argue over duration, but copyleft would not be possible if everything were in the public domain.
Copyleft wouldn't be necessary if everything were in the public domain.
If everything were in the public domain, nothing would stop you from forking an open-source project and distributing only binaries of your modifications. The precise difference between the GPL and say the MIT/BSD licenses is that the GPL precludes that. Copyright is the only hook you can use to compel creators of derivative works to distribute user-readable source.
Under MIT/BSD you can't, for example, use and distribute the changes to the Mac OS source code which were made after they forked from BSD.
There's still a bit of difference between GPL and just having everything public domain, I agree, but the difference isn't nearly as important as you're thinking it is.
So... it's exactly like the coming future anyway?
I am sure you could make money off looking for exploits that could be sold to black hats.
That copyright can allow labor to create capital is one of its more important aspects.
It's almost universally known in the non-English speaking world also. They lyrics change, but the music remains the same.
Happy Birthday To You has been translated to pretty much every language, it's been appropriated by so many nations and cultures that you would even be hearing it in ISIS controlled parts of Syria these days.
We'll get every doc out of PACER one day and reform their stance on charges for access, until then RECAP will have to do.
EDIT: If you work in the PACER IT department and want to send me a hard drive, that'd be fine too ;)
I view the registration fee as just another tax. In fact, the state of Florida requires that you pay Florida sales tax for vehicles purchased outside the state (if purchased/registered within a year I think) and it takes that tax as part of the vehicle registration fee.
Is the copyright system "just"? No. Hell no. We're so far removed from that point that some people view copyright violation as a form of justice. A lot of that likely stems from the length of terms for copyright and the fact that everything is copyrighted by default. Go back to mandatory registration (with a registration fee =) and somewhere between 5-25 year terms depending on the work and that'd be a good start towards copyright justice.
I believe most states require this (if you purchased the vehicle less than one prior to the date you are registering it in the new state).
edit: and now I'm confused b/c you're an appellate lawyer...
edit2: btw, there's a reasonable scenario where free is the most they could legally charge, in case you were focusing on the fact that a fee is charged at all
If you are arguing that Warner has no rights, then Warner has no ability to make the work public domain.
Does anyone have a link to the final settlement document?
Presumably Warner agreed to this because it was (a) cheaper than fighting the full suit, and (b) avoided setting that legal precedent that might have hurt their ownership of other songs.
Here's the settlement document: https://happybirthdaylawsuit.com/Portals/0/Documents/OFJ.pdf
Also note that the Court only placed it in the public domain as of the final settlement date, rather than retroactively back to its apparently false registration.
Again, "apparently false registration" is something that the agreement carefully avoids making a determination on. There's a bunch of "this is not an admission of guilt" language in there, which is how settlements normally work.
It's great to see that there are ways to incentivize fighting for the public domain.
That's not what happened here. A law firm was awarded this portion of the settlement for several years and thousands of hours of work. The judge took their billing and added 20% because he thought they did exceptional work that deserved an exceptional reward (i.e. a 20% bonus - kinda like a courtroom MBO).
The numbers cited are respectable lawyer pay but they're nothing extraordinary. When I worked on an expert witness report a number of years back, our hourly fee was in that vicinity.
Did the judge just transfer money from the plaintiff to the plaintiff's lawyers?
Some hackers create problems and other hackers (aka security consultants) sell the solutions.
When it comes to lawyers; some laywers create problems by launching legal action and then other lawyers sell the solution by offering defence.
One set of lawyers gets hired by a company to sue another company which, in response, is forced to hire a different, equally large and equally expensive set of lawyers to defend itself.
Then you have a judge who sits in the middle and who has a tendency to be sympathetic towards the lawyers (judges are often former lawyers themselves).
It's not surprising that lawyers get such massive payouts.
I think this case should have been thrown out of court because it is idiotic. The judge just saw an opportunity to allow his lawyer friends make some money - Maybe they will return the favor some day.
The worst part is that the judge and the lawyers probably feel all warm and fuzzy about what they did... The lawyers probably think of themselves as being "The heroes who moved the happy birthday song into the public domain" - Whereas in reality, they are "Hackers who manipulated the legal system to make money for themselves".
Regardless of the outcome of this case, people would still have continued to sing happy birthday - Everybody in the world knows this. The plaintiff didn't have much of a case.
This is true. Yet, if the case had not happened, Warner would be able to block the usage of Happy Birthday in any movie it wanted to.