Directly from SBI President on Karaoke Downloads

[Guest]

I'd agree, but perhaps you should consider what might constitute "damage." Remember that there are consumer protection considerations as well. Further, bad rips can result in poor quality reproductions, and displays of trademark that accompany bad rips damages the holder's reputation.

In commercial broadcasting and film production that would be easily substantiated but, this type of damage is extremely hard to demonstrate in a lounge setting. The karaoke brand is more often relevent to the tradesman than the patron.

It's also mute if the trademark never appears in substantial public exposure. Even if the DJ grossly defamed your product in a public venue - it would matter substantially whether it was an audience of 3 or 3 million.

My understanding is that the plaintiff can choose to pursue either actual or statutory damages. Neither is predicated on the other. Since actual is extremely difficult to calculate, statutory is usually chosen.

The courts have routinely insisted (absent specific contract breach or intent to defraud) that statutory damages must share some relevence to actual damages. They have in previous IP cases reduced or eliminated statutory damages on that basis. True media shifting is a prime example. Where no actual damage can be shown - the court will not allow you to invoke statutory damages as some sort of technical lottery ticket.

 

[Chartbusterette]

In commercial broadcasting and film production that would be easily substantiated but, this type of damage is extremely hard to demonstrate in a lounge setting. The karaoke brand is more often relevent to the tradesman than the patron.

I'd disagree, but I'd also have to concede that, as a manufacturer, and with your position as the postulated tradesman, our respective positions are not necessarily neutral. In the absence of hard marketing data to support either position, let's agree to disagree.

It's also mute if the trademark never appears in substantial public exposure. Even if the DJ grossly defamed your product in a public venue - it would matter substantially whether it was an audience of 3 or 3 million.

No question, the degree of the stipulated damage is lessened when the audience exposed to the damage is smaller. But also consider that the trademark appears at the beginning, at the end, and in newer cases during the instrumental breaks of the karaoke lyric wipe display. This constant exposure to the brand reinforces the impression, similar to the now-ubiquitous "bugs" that you see on your television screen that keep you informed of what channel you're watching. If that impression is negative due to poor sound quality, the damage is multiplied as a result of the heightened exposure.

In addition, the Chartbuster brand reaches beyond the karaoke show market. We sell tracks to television shows, movies, game publishers, webs sites, and many more outlets. I would put forth the argument that infringing performances that damage the brand could hurt Chartbuster in ways that extend beyond the impressions of that night's generic karaoke crowd. Who knows who was in the audience on a particular night who might hold the purse strings on expenditures for, say, the next rhythm game, or who does does the track acquisition for a movie studio? (This also relates directly to my point below about actual damages.)

In short, I'm unconvinced that "substantial public exposure" comes into play here. How many CB songs were played, on how many nights, for how many customers, for how many months or years? Multiply each of those instances by three and I don't think the damages phase is going to be hugely affected, and is far from a moot point.

The courts have routinely insisted (absent specific contract breach or intent to defraud) that statutory damages must share some relevence to actual damages. They have in previous IP cases reduced or eliminated statutory damages on that basis. True media shifting is a prime example. Where no actual damage can be shown - the court will not allow you to invoke statutory damages as some sort of technical lottery ticket.

But media-shifting alone isn't an infringing activity (per Betamax). Judges have indeed reduced jury awards, citing a lack of relevance to actual damages (RIAA v. Thomas-Rassert), but I'm not arguing against that point at all. I'm saying that proving actual damages in a case such as the one stipulated are darned near impossible. Collecting actual damages requires proving actual damages.

A judge may decide that the minimum statutory damages apply in any particular case, or they may decide that the maximum applies, or anywhere in between. But remember, if a highly-motivated plaintiff can't provide a provable number relating to actual damages, how much less can a judge? And in that light, is a judge more likely to recognize their own inability to relate such a number to statutory damages, or less so? In both the spirit and the letter of the law, statutory damages aren't a "technical lottery ticket" as you cite above, they are a protection to the plaintiff in cases where actual damages are impossible to prove or calculate. Such difficulty applies equally to the court as to the plaintiff.

 

[JoeChartreuse]

The argument is that you don't seem to understand that a copyright or trademark violation does not occur unless and until the specific use produces actual commercial damage to the rights holder.

In the absence of any actual damages no statutory damages will awarded unless there is in place a specific prior contract between the partries or statutory prohibition on a specific action (very rare.) Media shifting produces no such damage to the rights holder, and has already been struck down as an actionable cause (thank you RIAA.) It does not matter if it's music, video, or karaoke - the legal principle is the same.

Please re-read my post- I never brought up violations at all. All I said was that altering the product makes it the KJs property, as it is no longer the original mfrs. product.

Media shifting is certainly still a gray area- as I have also posted- but responsibility for one's products is not. Ripped products are KJ created MP3s, and are the responsibility of the mfr.- in this case, the KJ.

 

[JoeChartreuse]

Further, if it were true, then the practice of naming a host in a lawsuit for observing tracks being played from a laptop is entirely justified, since it is clear evidence of the creation of a derivative work.

I deleted the rest of your post, because the statement above negated it, and helps validate what I said, because this is exactly what is happening. Both you and SC, right?

 

[JoeChartreuse]

[edit] One more thing - you've asked someone to prove a negative. That's a logical fallacy.

Thanks. I brought this up myself, for a different reason, but true.

 

[JoeChartreuse]

The argument is that you take the extra leap to say it is illegal for Kurt to market & sell his own product in the US because of this.

Actually, I don't care about the legality, and it was never my point. My point was A) Lack of licensing makes it impossible for SC to win a Trademark Infringement case in the U.S, and B) Anyone who pays a licensing fee for unlicensed product is not using good business sense.



The argument is that you are confusing the product with the delivery method. Coca-Cola is still Coca-Cola, whether in a can, bottle or out of a fountain.

I don't care about delivery method. I was speaking of altered product, not it's container.



When you pour Coca-Cola from a can into a glass from your kitchen cabinet, the carbonation outgasses, it is diluted by ice and it changes from what it originally was from the manufacture. But it is still Coca-Cola, not some new product of your own creation.

Soda manufacturers EXPECT the product to outgas with consumer use. However, when it does, I am not using it for commercial purposes, or passing it off as unopened product.

So, how's life treatin' ya these days? We had some nice weather here in NJ for a change. How is it in your area?

 

[Paradigm Karaoke]

But also consider that the trademark appears at the beginning, at the end, and in newer cases during the instrumental breaks of the karaoke lyric wipe display. This constant exposure to the brand reinforces the impression, similar to the now-ubiquitous "bugs" that you see on your television screen that keep you informed of what channel you're watching. If that impression is negative due to poor sound quality, the damage is multiplied as a result of the heightened exposure.

this is the only part that hit me funny. couldnt the same also be said for someone using all Behringer, Audio 2000, or some Radio Shack equipment? no matter what track you use, that gear will make it all sound like dog s**t.
i am not disputing your point as much as trying to expound on it a bit.

 

[Singyoassoff]

but media-shifting alone isn't an infringing activity (per betamax)

thank you!!!

 

[Singyoassoff]

Ripped products are KJ created MP3s, and are the responsibility of the mfr.- in this case, the KJ.

Please point me towards ANY authority, legal or otherwise, to back up this assertion.

 

[rumbolt]

Not in the case of a true 1-1 format shift. THAT is what I am referring to.

Ok, I took another look and saw that I misread it as not true 1:1, my bad.

 

[JoeChartreuse]

Originally Posted by chartbusterette:
"...but media-shifting alone isn't an infringing activity (per betamax)"


thank you!!!

I completely agree, and never said it was. I just said AGAIN: Once shifted, it is no longer the manufacturer's original product. As a matter of fact, both CB and SC agree with MY statement, which is why and how they are using a PC generated logo as their hook for Trademark Infringement.. If they thought it WAS their original product, they couldn't/wouldn't do that. Of course THEY need to have licensing for that track to make it stick...

Therefore, if one disagrees with my statement, one also disagrees with SC and CB, and also does not see the viability of using a PC generated logo as the reason for initiating a legal case.

 

[JoeChartreuse]

Please point me towards ANY authority, legal or otherwise, to back up this assertion.

Nah. You do the research, and then you will KNOW. Anything I post will be argued.... Or better yet, prove a negative by proving me wrong..:winkpill:

Actually, what I'm getting at this point is that people who use downloads and such will never stop arguing because that's the format on which their show is based. So be it. Hopefully, the publishers/owners will never get involved and you'll be fine. Of course, no one thought the karaoke mfrs. would get in involved either.....

For those who are NOT based on downloads, I strongly advise against it, for reasons stated.

For those of you who have already ripped your discs to MP3s, and run a PC based show. it's possible that owning the original discs may offer some protection, but I wouldn't bet on it, except from the karaoke mfrs. only.

For those of you who are still original manufacturer's disc based, but considering changing to PC: You are currently the safest ( but not completely safe), and switching over during the current litigous climate would not be the best business decision.

There it is. Use it, don't use it. Have fun, and hope for the best....:smilepill:

 

[Singyoassoff]

I completely agree, and never said it was. I just said AGAIN: Once shifted, it is no longer the manufacturer's original product. As a matter of fact, both CB and SC agree with MY statement, which is why and how they are using a PC generated logo as their hook for Trademark Infringement.. If they thought it WAS their original product, they couldn't/wouldn't do that. Of course THEY need to have licensing for that track to make it stick...

Therefore, if one disagrees with my statement, one also disagrees with SC and CB, and also does not see the viability of using a PC generated logo as the reason for initiating a legal case.

In the case of a true 1-1 media shift, this argument affects any of the legal rights involved or carries any legal weight because... ?

 

[Singyoassoff]

Nah. You do the research, and then you will KNOW.

You make blanket statements about legality, and when I ask you to provide a source to ANY authority to said statement, you decline and direct that I am to search for your source?

As you know, I am new here, and I just wanted to let you know I appreciate your posts. I agree with you on many things, and we disagree on others. I assure you I am not in either camp. I understand why the manus are on the warpath; however, as you, I do not agree with some of the tactics that have been used. I just have a problem when someone makes a statement or claim that sounds to be based in law, yet they refuse to provide a source.

 

[JoeChartreuse]

In the case of a true 1-1 media shift, this argument affects any of the legal rights involved or carries any legal weight because... ?

OK, let's go all the way through this as if I was completely wrong:

Downloads: Multiple copies from a single source. Let's say I'm wrong, alterations don't count, and the download is still manufacturer's original product. Multiple downlods from a single source are still mfrs. original product. Cool. SO, if one were to make multiple copies of mfrs. original product to 100 hard drives, like the E-bay sellers, then THEIR hard drives ALSO contain mfrs. original product.

Now they sell these hard drives at, say, $300 for an HD loaded with 100K of these orginal products. The KJ that BUYS that product is ALSO running original mfrs. product, if transfer doesn't matter. That means that they can't be hooked for Trademark Infringement, because they too are running mfrs. original product, right? Another thing. While the HD seller may not have paid for his product, the KJ did. Granted, he paid a helluva lot below the value, but he has a receipt- so going after him for stealing won't work either. BTW- this scenario would make burned discs original mfrs. product too.

I might also add that if the tracks on the HD are still mfrs. original product, then the concept of 1:1 is no longer valid either, because if the tracks on the HD are mfrs. original product, then discs wouldn't be needed.

So which way do you want to go? Either altered products are no longer mfrs. product ( which is actually true) and these altered tracks are the KJ's licensing responsibility, or they ARE still mfrs. product, and as such they can't be a source of Trademark Infringement, the mfrs. have no legal standing, and those using the e-bay HDs are good to go ( though the sellers can be prosecuted). Take your pick.

 

[Singyoassoff]

OK, let's go all the way through this as if I was completely wrong:

Downloads: Multiple copies from a single source. Let's say I'm wrong, alterations don't count, and the download is still manufacturer's original product. Multiple downlods from a single source are still mfrs. original product. Cool. SO, if one were to make multiple copies of mfrs. original product to 100 hard drives, like the E-bay sellers, then THEIR hard drives ALSO contain mfrs. original product.

Now they sell these hard drives at, say, $300 for an HD loaded with 100K of these orginal products. The KJ that BUYS that product is ALSO running original mfrs. product, if transfer doesn't matter. That means that they can't be hooked for Trademark Infringement, because they too are running mfrs. original product, right? Another thing. While the HD seller may not have paid for his product, the KJ did. Granted, he paid a helluva lot below the value, but he has a receipt- so going after him for stealing won't work either. BTW- this scenario would make burned discs original mfrs. product too.

I might also add that if the tracks on the HD are still mfrs. original product, then the concept of 1:1 is no longer valid either, because if the tracks on the HD are mfrs. original product, then discs wouldn't be needed.

So which way do you want to go? Either altered products are no longer mfrs. product ( which is actually true) and these altered tracks are the KJ's licensing responsibility, or they ARE still mfrs. product, and as such they can't be a source of Trademark Infringement, the mfrs. have no legal standing, and those using the e-bay HDs are good to go ( though the sellers can be prosecuted). Take your pick.

You are talking about true piracy here. NOT 1-1.

If one owns a cdg disc, one (arguably) has the right to play said cdg disc in a commercial setting, as long as the venue is paying BMI & ASCAP, etc.

1-1 media shifting of a cdg disc is (arguably) legal. Granted -- grey area here... but I believe at this point it has yet to been proven illegal.

I believe playing an (arguably) legally shifted 1-1 file in a commercial environment is no different than playing the disc. (As long as the original disc is archived and NOT in use. Again, we're talking 1-1 here.)

I do not understand your premise that a 1-1 media shift releases the original manu from licensing responsibility and places said responsibility on the KJ. Your source for this is...?

I do not understand your premise that a 1-1 media shift changes ANY of the rights or responsibilities for ANY parties. Your source for this is...?


I'm not an IP attorney, and this is not legal advice.

 

[Paradigm Karaoke]

Joe has proven to have much wisdom, and Singyoassoff has points as well. i think the transfer can be still a manu product, but if i have 100 drives with the same songs on them but have only purchased one disc, it is not quite the same as if i had stolen 99 discs from the CB warehouse. CB (for example) was given a license to create 1000 CD+G of song "x". if i make 99 pirate copies of that disc, that puts 1099 copies in use. so as long as 1 production of song "x" is in use (the rip for example) and not the original disc, then only 1000 copies of that song are in use and keeps to the original agreement paid for by the manus. if i were to use my discs as well, then i would be responsible for the use of copy 1001 which was not paid for by anyone and is stolen.

 

[Guest]

Joe has proven to have much wisdom, and Singyoassoff has points as well. i think the transfer can be still a manu product, but if i have 100 drives with the same songs on them but have only purchased one disc, it is not quite the same as if i had stolen 99 discs from the CB warehouse. CB (for example) was given a license to create 1000 CD+G of song "x". if i make 99 pirate copies of that disc, that puts 1099 copies in use. so as long as 1 production of song "x" is in use (the rip for example) and not the original disc, then only 1000 copies of that song are in use and keeps to the original agreement paid for by the manus. if i were to use my discs as well, then i would be responsible for the use of copy 1001 which was not paid for by anyone and is stolen.

Like the mahufacturers and rabid KJs you are throwing a bunch of assumptions into a belnder and claiming the resulting mix can only be "piracy" when in fact much of it is legal oil and water. You can shake it up all you want - but, it will always separate out into it's component parts many of which are facts not in evidence.

 

[Guest]

OK, let's go all the way through this as if I was completely wrong:

Downloads: Multiple copies from a single source. Let's say I'm wrong, alterations don't count, and the download is still manufacturer's original product. Multiple downlods from a single source are still mfrs. original product. Cool. SO, if one were to make multiple copies of mfrs. original product to 100 hard drives, like the E-bay sellers, then THEIR hard drives ALSO contain mfrs. original product.

Now they sell these hard drives at, say, $300 for an HD loaded with 100K of these orginal products. The KJ that BUYS that product is ALSO running original mfrs. product, if transfer doesn't matter. That means that they can't be hooked for Trademark Infringement, because they too are running mfrs. original product, right? Another thing. While the HD seller may not have paid for his product, the KJ did. Granted, he paid a helluva lot below the value, but he has a receipt- so going after him for stealing won't work either. BTW- this scenario would make burned discs original mfrs. product too.

I might also add that if the tracks on the HD are still mfrs. original product, then the concept of 1:1 is no longer valid either, because if the tracks on the HD are mfrs. original product, then discs wouldn't be needed.

So which way do you want to go? Either altered products are no longer mfrs. product ( which is actually true) and these altered tracks are the KJ's licensing responsibility, or they ARE still mfrs. product, and as such they can't be a source of Trademark Infringement, the mfrs. have no legal standing, and those using the e-bay HDs are good to go ( though the sellers can be prosecuted). Take your pick.

Wow Joe, that was completely asinine.

1.) A download is form of distribution, so are CDs. They are all copies of a master recording. Your concept of "original manufacturer's product" does not exist in the law with regard to how music products are distributed. The trademartk is infringed by it's use - not simply by it's attachment.

2.) Making 100 hard drives is called duplicating not downloading.

3.) Selling or distributing protected content without a corresponding license is called piracy. The is no connection between unauthorized duplicating and the concept of 1:1. 1:1 is also not a legal construct it is an implied or express contract. If you prucahse 1 automobile it is implied and expressed in writing that you shall drive only 1 of them off the lot. If you purchase 1 song it is an express condition of the copyright that you have the right to singular application of the work (supplying 1 DJ/KJ). Cloning the application of the work is duplicating not archiving.

4.)I do not need a disc for every track on my hard drive. The law only requires that I have the right to put it there. (1 right : 1 track) I can acquire that right in many ways, and even independently of the track itself; with permission of the rights holder, separate purchase of the right, purchase of an authorized download, media shift of a valid existing product right, or a valid right that supercedes the license rights of the distributor. I only lose that right if it is transferred or revoked. For example, selling or gifting the CD transfers the rights bundled with it. However, product wear or destruction does not revoke my right which remains in it's non-transferrable archive. (Because digital archives perpetuate the life of music products, the music incdustry has persistently and unsuccessfully sought tohave them revoked. A position not inconsistent with the actions of karaoke manufacturers.)

5.) If the manufacturers can not prove that the track in question is pirated - they do not have legal standing on the Trademark issue. This is why an audit is critical to their case - a few absent discs is not sufficiet proof. No discs at all is a valid inference but, what has not been demostrated is their ability to meet the evidentiary threshold necessary to attain a court ordered audit (placing the inference ahead of the evidence.) There is yet no example of them attaining standing on this issue as they have presented it. They are in the duplicitous position of suing for Trademark while seeking a action on piracy - through an inference on facts not in evidence. The court is not likley to allow their cases to proceed with half their wheels on the rails of a different track, and there is a valid constitutional objection to their search request even under civil litigation.

You can decide for yourself if coercive settlements are an effective way to improve the karaoke biz. The RIAA actions did nothing to boost the music industry. iTunes and similar forward thinking on distibution methods on the other hand has had a huge positive impact. I suspect it shall be no different here.

 

[Paradigm Karaoke]

4.)I do not need a disc for every track on my hard drive. The law only requires that I have the right to put it there. (1 right : 1 track) I can acquire that right in many ways, and even independently of the track itself; with permission of the rights holder, separate purchase of the right, purchase of an authorized download, media shift of a valid existing product right, or a valid right that supercedes the license rights of the distributor. I only lose that right if it is transferred or revoked. For example, selling or gifting the CD transfers the rights bundled with it. However, product wear or destruction does not revoke my right which remains in it's non-transferrable archive. (Because digital archives perpetuate the life of music products, the music incdustry has persistently and unsuccessfully sought tohave them revoked. A position not inconsistent with the actions of karaoke manufacturers.)

5.) If the manufacturers can not prove that the track in question is pirated - they do not have legal standing on the Trademark issue. This is why an audit is critical to their case - a few absent discs is not sufficiet proof. No discs at all is a valid inference but, what has not been demostrated is their ability to meet the evidentiary threshold necessary to attain a court ordered audit (placing the inference ahead of the evidence.) There is yet no example of them attaining standing on this issue as they have presented it. They are in the duplicitous position of suing for Trademark while seeking a action on piracy - through an inference on facts not in evidence. The court is not likley to allow their cases to proceed with half their wheels on the rails of a different track, and there is a valid constitutional objection to their search request even under civil litigation.

i am not sure what you were getting at in your reply to my last post, so i am not sure how to answer it. it almost sounded like you were responding to a different post.

in this one, are you saying that the manus have to prove that i did not have the right to use the tracks on my drive, but not having discs or receipts is not a valid method? However, "product wear or destruction does not revoke my right which remains in it's non-transferrable archive." i could say all my discs were destroyed in the fire in my garage, and they can do nothing about it? there must be some way to protect their rights, but it seems every method has been shown to be "bad" (i can not find the word i am looking for here).
"If the manufacturers can not prove that the track in question is pirated - they do not have legal standing on the Trademark issue." what way COULD they prove it if audits, not having the original media, or proof of paying for the tracks are not acceptable as proof of piracy?