New Music Monday: The Coppertone, Little Dragon, Slowtrain, These Kids Wear Crowns, Laura Jansen

Staff picks from @semaphoremusik

The Coppertone (Amanda Zelina) (Toronto) “Black Water” @thecoppertone

Little Dragon (Gothenburg) “Ritual Union” @twittledragon

Slowtrain (Austin) “Bound to Find You Out”

These Kids Wear Crowns (Chilliwack) “Jumpstart” @tkwc

Laura Jansen (LA) “The End” @laurajansen

20 Questions for New Artists: Publishing Company/Marital Status/Instruments and Inventory/Passport and Work Permits

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to semaphoreindustryquestions@gmail.com before February 15. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Publishing Company

Do the writer members of the band have a publishing or administration deal or are you self-published? Multiple publishing deals in the same band are less frequent problems for independent artists, but it does happen and it can add a layer of complexity when shopping for a new publishing deal. Keep in mind that if the writers have affiliated with ASCAP, BMI, or SESAC as a writer, your publishing company must follow the same affiliation. Another wrinkle comes with writers who are affiliated with foreign societies (e.g., SOCAN, MCPS-PRS). If the band has a foreign society writer or co-writer on any songs, the members should consult with their U.S. society to determine how to handle their affiliation and registrations.

Instrument(s) Played, Brand and Inventory

While band members will know who plays what, it’s useful to have a written record of who plays what so you can give it to someone else (such as a manager). Also, having information about the instrument(s) and brand(s) that a member uses could prove useful in strategizing for sponsorship opportunities. We also recommend having the band complete an inventory of instruments for insurance purposes (including serial numbers if available), complete with photographs or video of the instruments. This visual record is especially useful with customized, rare or one-of-a-kind instruments.

Marital Status

Common problems arising from marriage that require planning include divorce (and the state law community property issues) and heirs (if a member dies). The band might be stuck dealing with the (sometimes resentful or surly) widow or widower who may inherit consent rights for synch or master use licenses, for example, if these approval rights are not lawfully foreclosed from descendibility in any band agreement. Make sure each band member understands the importance of discussing your intellectual property assets (e.g., songs and recordings) with your spouses and considers taking advice for appropriate legal protections for all concerned.

Passport/Work Permits

If the band is planning to tour internationally—including Canada and Mexico—each member (and any crew traveling with you) must have a valid passport. You should get a photocopy of the inside pages of the passport (in case of loss or damage and for immigration forms). It may also be useful to calendar the expiration date of each passport so that you can quickly know if one member’s passport is set to expire when negotiating any tour agreements outside of the United States. There are services that can turn around a passport renewal in 24-48 hours, but they are expensive. There is also an expedited passport renewal process at the Passport Office in Rockefeller Center in New York, but that, too, is an expensive process and typically requires physical presence.

The band would also be well to consult an experienced immigration lawyer before committing to any contracts for touring abroad to ensure that you have the proper work permits. Every year, international acts are accepted to festivals such as SXSW only to be turned away at the border for failing to secure the proper permits. There are even stories of bands being turned away for failing to file a tax return or convictions for driving under the influence or drug possession.

See also: Insurance/Legal Names/DOB and Nationality

See also: ISRCs/Unions/Side Projects

See Also: Pre-Existing Contracts and Aggregators

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

20 Questions for New Artists: Insurance/Legal Names/DOB and Nationality

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to semaphoreindustryquestions@gmail.com before February 15. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Insurance

Many bands overlook the importance of insurance, often until it is too late. Even if you don’t overlook it, many artists don’t fully understand why their coverage may be lacking. It is a very good idea for the band to meet with an insurance agent experienced in music industry insurance and get a report from that agent about the coverage the band has (if any) compared to what the agent recommends. In the early days, the band may not have sufficient monies to both get insurance and set up limited liability entities. We always recommend insurance in this case. At a minimum, the band should have commercial insurance on your van and sufficient coverage to protect against loss or damage to the band’s musical instruments. If feasible, the band should also seek general entertainer liability insurance, which is an umbrella policy that covers artists above and beyond the typical automobile insurance and other common coverages. (Tip: Watch out for exclusions for thrown objects.)

Legal Names of Members

Each member should provide the managing member with the member’s full legal name. This will be necessary for contracts, registration of copyrights, etc. It is a good idea to have a list of each member’s cell phone and email so you can give that to anyone who needs to reach the band, particularly on the road or in case of emergencies. If there are any sidemembers (i.e., “hired hands”), list them as well. This type of information can also help the band’s accountant spot red flags like the employee versus independent contractor issues.

Date of Birth and Nationality

It is important to know early on if any members are not of the age of majority so that if someone is under age, you will be prepared for any issues in your state relating to age of consent (usually for contracts) and employment law (performing in clubs that serve alcohol, for example). If the band tours out of state, you will need to consider these issues. Often this involves having a parent or guardian available to sign off on any written agreements. Many states have court procedures (particularly California) that can allow minors to have special rights to do business or make contracts, such as “emancipated minor” laws or “judicial ratification” of contracts. Do not assume that these laws apply to minors in your band without talking to an experienced labor lawyer familiar with your state (and any other states or countries you may be touring in). It’s also handy to have each member’s date of birth available for any copyright registration applications you file (such as Form PA for musical compositions) because the U.S. Copyright Office often requires applicants to include the year of birth.

See also: ISRCs/Unions/Side Projects

See Also: Pre-Existing Contracts and Aggregators

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

20 Questions for New Artists: Pre-existing Contracts and Aggregators

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to semaphoreindustryquestions@gmail.com before February 1. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Pre-existing Contracts:

Ask your band mates for copies of any music industry contracts the band, or any of you, have previously signed before you formed or joined the band. Whether it be a credit card, management agreement, publishing deal, previous band agreement or a production agreement, it is important to understand the band’s current rights and restrictions. If any of the members are still tied to an exclusive recording agreement from a prior band, or has credit card debt from a prior band, that needs to be cleared up sooner rather than later. Extracting the artist from a prior agreement may not be quick or even possible.

Aggregators:

It is almost required that an independent artist sign up with an aggregator in order to have your works serviced to many online outlets–some aggregators service over 300 different retailers.

It is important to remember that without marketing and promotion, a new artist is simply a needle in an even bigger digital haystack. Do not expect the aggregator to do any significant marketing or promotion, much less guarantee it.

Given that there are so many potential digital outlets, it is important for an artist to be able to decide on a case by case basis whether they want to be included and preserve the right to opt-in to any retailer or to opt-out at any time.

Artists should also be able to terminate the aggregator deal on short notice for any or no reason (e.g., 30-60 days). If you are asked to sign a deal with an indie label or with a major label, these labels will require that you give them exclusive distribution rights–including the digital rights you have already granted to the aggregator. That means that you need to have the ability to terminate your aggregator deal and transfer digital distribution to the new label. There have been instances where digital distributors tried to hold up artists from signing to bigger situations based on a prior grant of digital rights. As digital becomes the primary means of sales, this issue is front and center.

How the aggregator is compensated is also an issue of concern. In the traditional model, the aggregator took a percentage of sales as their compensation. This meant that the aggregator only made money if the artist made money. (This is similar to a traditional distributor model.) Some aggregators charge a flat fee on some basis (such as a per-retailer basis) instead of a percentage.

Each model has its strong and weak points. The percentage model pays the aggregator regardless of whether they are making an effort to stimulate sales (which few of them do in any event). However, under the percentage model the aggregator only makes money if you make money, so the incentives are aligned. The percentage should be low (10% or so) to take into account that the aggregator has lower incremental costs over time of maintaining content in their catalog.

The flat fee model has the artist pay the aggregator a fee for distribution instead of paying the distributor a percentage. While this is attractive from the point of view that the artist knows what their distribution costs will be up front, it also transfers all of the risk of distribution to the artist.

In order to determine which is the better model, the artist should compare their most favorable percentage based offer to the flat fee model and see what the breakeven point will be. Try using a formula like this:

[Flat Fee]/[percentage] = Gross Income

Gross Income/wholesale price = breakeven units

or, for example:

$100/.10 = $1,000 (Gross Income)

$1,000/$0.70 = 1428 units (rounded down)

In the example, a $100 flat distribution fee is equivalent to a 10% distribution fee model if you sell 1,428 units at a wholesale price of $0.70 (a typical wholesale price for permanent downloads). That means that at 1,428 units you will be indifferent between the two models. It also means if you sell fewer than 1,428 units, you will be better off under the percentage model. If you sell more than 1,428 units you will be better off under the flat fee model.

To take another example of the flat fee model, what would the flat fee equate to under the percentage model at 500 units at a wholesale price of $0.70 (a typical wholesale price for permanent downloads)?

[Flat Fee]/[Gross Income] = Distribution Fee as a percentage

$100/[(500) x ($0.70)] = 28.6%

In any of these examples, you will need to use your own projections on sales, wholesale price and configurations in order to get a projection that is relevant for your own use.

Also, the aggregator need not collect SoundExchange monies and should not be able to enter into any agreements on behalf of the artist/copyright owner that allows the aggregator to waive any rights (such as litigation rights) or to settle any claims.

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

Copyright 2009 Chris Castle and Amy Mitchell. All Rights Reserved.

20 Questions for New Artists: Band Administrator/Split Sheets

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to semaphoreindustryquestions@gmail.com before February 1. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Band Administrator

It is a good idea for one band member to take responsibility for keeping track of the papers and information relating to the band’s business, such as receipts, bank statements, credit cards, payments, approvals for licenses, etc. This is especially important if there is no manager involved with the band. The “managing member” does need to keep the other band members informed, and should not be able to assume any liabilities or sign any contracts on behalf of the band without written consent of the other members and giving them a chance to read and understand what it is they are signing up to.

Split sheets

Song splits are probably the most sensitive conversations that the band has together. Many professional songwriters take split sheets into each writing session and sign off on the split sheet and register the song as soon as the song is completed. This is another one of those discussions that are better had before the band is making money to avoid the “selective memory disease” and can help if the band (or any member-writer) is ever accused of copyright infringement in connection with a song.

See Also: Social Networks and Domain Names/Trademarking the Band Name
See Also: Performing Rights Society Affiliations
See Also: Bank Accounts/Tax Returns/Accountants
See Also: Have you Registered with SoundExchange? Copyright 2009 Chris Castle and Amy Mitchell. All Rights Reserved.

20 Questions for New Artists: Social Networking and Domain Names/Trademark the Band Name

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to semaphoreindustryquestions@gmail.com before February 1. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Social Networking and Domain Names

Many bands think that if you have a Myspace and Facebook page you don’t need to get a domain name, too. It is better to secure rights in the band’s domain name for at least one top-level domain such as .com, even if you just have the band’s domain point to a Myspace page for the moment. After all, no social network provider promises to stay in business forever nor do they offer the plentiful e-commerce possibilities available through an independent website.

Trademark the Band Name/Logo

While there’s nothing new under the sun, the band should do its best to come up with an original name for the band. There may be other bands using the exact same name or a different name but the same logo. Don’t assume that the other band using the same name is not important—we have heard excuses from “we’ve heard the other band will break up” or “the other band hasn’t logged into their myspace account in three months.” (Especially true if the apparently abandoned Myspace account is, for example, myspace.com/mariahcarey.) Logos are equally important in this age of merchandising and branding, so it is essential to have a discussion about the origin or inspiration for a logo, if any. The band should seek the advice of an experienced trademark attorney to register your band’s name and logo for trademark protection.

See Also: Performing Rights Society Affiliations
See Also: Bank Accounts/Tax Returns/Accountants
See Also: Have you Registered with SoundExchange?

Copyright 2009 Chris Castle and Amy Mitchell. All Rights Reserved.

Artist Glossary of Industry Terms: “Mechanical Royalties”

“Mechanical royalties” refer to monies paid to songwriters or music publishers for reproductions of songs in sound recordings (either for permanent downloads or streaming mechanicals). Mechanical royalties (or “mechanicals”) are usually paid by record companies (or outside the US, by digital retailers).

In the United States these rates are set by statute and have varied over the years. The historical rates for permanent downloads or compact discs are available from the U.S. Copyright Office. (http://www.copyright.gov/carp/m200a.pdf) The current minimum rate for a permanent copy (such as a digital download or a CD) of a song is 9.1¢. Different rates apply to certain kinds of subscription services and for other forms of exploitation.

Mechanical royalties are usually collected by music publishing administrators or music publishers, including collecting societies such as the Harry Fox Agency in the United States or CMRRA in Canada.Distinguish the mechanical royalty—a reproduction based royalty—from the performing right royalty—based on the public performance of a song.It’s also important to keep in mind that in the US digital retailers (such as iTunes) do not currently pay mechanical royalties directly to a publisher or collecting society. Instead, a US digital retailer will pay mechanical royalties for permanent downloads to the owner of the sound recording which will use the “pass through” license permitted in the US. Other rules apply outside the US which typically will see a digital retailer licensed by the prevailing authors rights society on a country-by-country basis.

Copyright 2010 Christian L. Castle. All Rights Reserved.

See Also: Bank Accounts/Tax Returns/Accountants
See Also: Have you Registered with SoundExchange?
See Also: Performing Rights Society Affiliation

20 Questions for New Artists: Performing Rights Society Affiliation

There is a bit of strategy involved with affiliating with a performing rights society in the United States. All the societies have a creative staff. The decision to affiliate with a particular society should be made after the artist/writer has taken some meetings with the performing rights society and decided if there’s more love coming from one than another.

Most of the time we like to wait until the music is fairly well formed and the band has gelled into a working unit before approaching the societies unless there’s a reason to move more quickly, such as getting a film or TV license, or substantial radio/webcasting play. In more experienced bands, the writers will already have an affiliation, so it is a good idea to know this in advance for purposes of servicing the creative staff with new music, competing for slots on compilations and festival shows, etc.

The major U.S. performing rights societies are the American Society of Composers, Authors and Publishers (http://www.ascap.com/), Broadcast Music, Inc. (http://www.bmi.com/) and the Society of European Stage Authors and Composers (http://www.sesac.com/).

See also: Bank Accounts/Tax Returns/Accountants
See Also: Have you Registered with SoundExchange?

Copyright 2009 Chris Castle and Amy Mitchell

Artist Glossary of Industry Terms–Advance

Artist Glossary of Industry Terms: “Advance”

An “advance” is almost always defined as a pre-payment of royalties, whether the advance is paid by record company to an artist, a publisher to a writer or a merchandiser to an artist. An advance is also sometimes called a “minimum guarantee”.

Advances in the music industry do not earn interest and are not loans. It is a popular misconception that artists are “in debt” to their record companies or writers to their publishers. By any normal definition of “debt” this is not true for two big reasons and many smaller ones: The advance payment does not earn interest and it does not have to be repaid. The advance is only “recoupable”—meaning that the advance is applied against earned royalties.

For example, if Artist A was paid an advance of $100 in 1970 and did not earn $100 of royalties until 2010, no interest would apply and the $100 in 1970 dollars would be paid dollar for dollar in 2010 dollars ($100 in 1970 would be worth approximately $600 today). If Artist A earned $1 a year in royalties from 1970 until 2009, but earned $500 of royalties in 2010, Artist A’s royalty account would be “debited” with $100 when the advance was paid in 1970, credited with $1 a year for 39 years, and then credited with $500 in 2010. Artist A would receive none of the $1 per year for 39 years, but would receive $439 in 2010.

During the years 1970 to 2010, Artist A was “unrecouped”. Artist A did not owe the record company any money, and interest did not run on the unrecouped balance. Artist A also got to pay off the advance in inflated dollars over time, so the actual cost to Artist A of earning the $100 is lower the longer it takes to recoup the advance.

A word to the wise: One problem with the misinformation floating around the Internet that “artists are in debt to record companies” is that it creates an opportunity for an unscrupulous or unknowledgeable record company to try to convince a new artist that the advance really is an actual debt. Run, do not walk, from such an offer.

Copyright 2010 Christian L. Castle. All Rights Reserved.

See also: Bank Accounts/Tax Returns/Accountants
See Also: Have you Registered with SoundExchange?

Isohunt Collapsing: Everyone knows where the booze is

Americans are freedom loving people and nothing says freedom
like getting away with it.

Guy Forsyth, Long Long Time © 2005 Monkey King Music

“Everyone knows where the booze is, Mr. Ness,” warned Officer Malone in David Mamet’s iconic screenplay, The Untouchables, as the federal officers were about to raid a Post Office transhipping point for bootleggers. The judicial system, at least outside of the Temporary Autonomous Zone known as San Jose (aka “TAZ 408”), today has another tool to deal with false innovation in the form of Judge Wilson’s order in the case against “innovator” Gary Fung and his Canadian-based websites.

Let it be said that there is an irony to Judge Wilson presiding over the prosecution of Gary Fung and his Canadian-based websites, but I would suggest that the one true irony is not the irony that has been reported in a few places. Judge Wilson also presided over the prosecution of the original Grokster case. The conventional wisdom on the copyleft is that Judge Wilson tried to hand the Grokster “innovators” a favorable ruling that was later (to no one’s surprise) sustained by the 9th Circuit Court of Appeals, but that was still later (also unsurprisingly) reversed by the U.S. Supreme Court in what is now the touchstone copyright infringement case used to go after defendants such as Defendant Fung. The approach is to consider (and, as here, punish) the way that a particular defendant behaved as opposed to attacking the underlying technology.

We have no way to actually know what Judge Wilson’s internal process was in Grokster, but my guess was that his initial ruling in favor of the “innovator” in Grokster that became the vehicle for the Supreme Court appeal that reversed him was not going out on a “legal limb” at all. This is probably what the Grokster lawyers would have one believe—or at least would have reporters believe.

Another view—arguably a better view–is that Judge Wilson ruled in exactly the appropriate way he should have given the state of the law at the time, the facts before him and particularly the litigants. It is a tribute to his judicial courage that he ruled as he did, probably knowing that there was a substantial likelihood that he would be reversed. And that he would, in his reversal, be handed the decision that he needed in order to rule properly in the Grokster case without fear of being reversed again.

In fact, I said at the time that Judge Wilson’s initial ruling (and on remand his subsequent rulings) was precisely accurate, and indeed, courageous as it demonstrated a total faith that the process would work. And so it did. The wheels of justice turn slowly, but they do turn.

Quite the opposite of the reportage on the Fung case, Judge Wilson didn’t go out on a “legal limb” in Grokster; he did exactly what he should have done. You only engaged in backslapping and cheering after the trial court decision if you were so disconnected from both legal history and fundamental and ancient jurisprudential principles that you actually though “sharing” with millions of your closest friends was defendable.

Reading Judge Wilson’s order granting summary judgment against “entrepreneur” Gary Fung in light of the better view of the history of Grokster, I think past becomes prologue for Defendant Fung.

In my experience, and with apologies to counsel it must be said, judges abhor bull. And in both the Grokster case and the Fung case, defendants piled up great, huge, heaping, shovel-ready mounds of it in the judge’s in-box.

Because as Officer Malone tells us, everyone knows what’s going on here—judges, most especially, but also everyone else who keeps these cases going.

Somebody is trying to get away with it. Someone is trying to escape judgement day.

Why? Probably because of the academics who have—so far anyway—no downside risk in demagoguing the issue and who have deluded people like Defendant Fung and the others into believing that somehow this time they will get away with it.

The way the game is played is that the “false innovation” of Bit Torrent is used by an operator to set up sites that are visible and most likely to be targeted for trading works of authorship that belong to other people and that are substantially unauthorized. The operator waits to be sued and sometimes never is. The operator—at least before the Pirate Bay convictions—uses any lawsuits as a way to promote itself and get free marketing to attract more users. In the legal trade post-Grokster, operating such sites is known as inducing copyright infringement—or it is very hard to imagine a scenario in which it would not be—and has been ruled illegal in the United States as it has in the Fung case.

Normally in these situations, one starts looking for Lessig (who can be counted on to voice his opposition to “what the industry calls piracy” not to be confused with “piracy”). But this time he is merely the vaporware, the ghost in the machine, echoes inside the bubble. No, there is a far more immediate proselytizer at work in his stead.

Defendant Fung, from what I have read, operated his servers in Canada. (Canada is a well-known haven for piracy and has been put on the Special 301 watch list by the Obama Administration.) Why Canada? Who advised him to operate from Vancouver? I wonder.

The truth of the case, however, I think is found in this passage from the ruling (p. 11):

“In any event, for the purposes of this case, the precise percentage of infringement is irrelevant: the evidence clearly shows that Defendants’ users infringed on a significant scale. It simply does not matter whether 75% (to pick a number) of available materials were copyrighted or 95% of available materials were copyrighted; and even if this distinction did matter, Defendants have simply failed to satisfy their summary judgment burden by submitting admissible evidence that raises a triable dispute regarding Plaintiffs’ evidence that a substantial percentage of the available files included copyright-infringing or highly likely copyright-infringing content.”

The evidence that Defendant Fung had to submit in his defense must be more than a metaphysical passing thought in a tweet by Michael Geist, more than a posting on a Facebook wall, more than an anonymous email—they must prove that which they cannot prove. And they cannot prove it because everyone knows where the booze is.

I would also point out the interesting language from Judge Wilson that what had to be rebutted was not an absolute case for actual infringement of each work, but in special cases like that of Defendant Fung, the defendant’s behavior is so bad that the standard is that plaintiffs do not have to bear the burden of demonstrating infringement for each work at issue—just that a substantial percentage of the available files included copyright-infringing or highly likely copyright-infringing content. Because everyone knows where the booze is.

And what was not expressly said by the Court is that judges (at least outside of TAZ 408) will not allow their courtrooms to be used to foist onto the law some hack, some weak-minded armwaiving about how Defendant Fung’s enterprises were just like a search engine, were just like Google. Now if Defendant Fung and his fellow travelers had managed to get Google to make a statement or much less file a letter or brief with the Court saying that they were just like Defendant Fung, the implausible commentary would still have been a fine example of bong logic, but it would have been more plausible outside of the dorm rooms of Mirrielees House.

Perhaps that kind of statement is to come on appeal, maybe through the Google Policy Fellow being established at the US-Backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic associated with Michael Geist, the leading Canadian commentator on Fung. It is so far unclear as to exactly how much involvement Geist has had in the Fung case itself.

The point is that the Court found that Defendant Fung was engaged exclusively or nearly-exclusively in infringing behavior in the United States and that Defendant Fung failed to present evidence to the contrary. Geist said “The interesting question is how will the court characterize (Fung’s [IsoHunt's owner] arguments), because the broader legal implications for copyright and for many parties – search engines and the like – could be affected by the outcome of this case.”

Actually, that’s the kind of fearmongering so typical of Geist that is simply inapt in this case. That would be true if the “search engines and the like” were engaged in encouraging digital natives to take what doesn’t belong to them. But if the “search engines and the like” are not engaging in the inducing behavior, then they may have something else to worry about, but they don’t have to worry about that which now is of primary concern to Defendant Fung.

As Defendant Fung was quoted by the Court (in a line worthy of that fine little speller in Raising Arizona): “they [presumably plaintiffs] accuse us for [sic] thieves, and they r[sic] right. Only we r [sic] ‘stealing’ from the lechers (them) and not the originators (artists).” (In case it doesn’t go without saying, Defendent Fung understates the scope of his “‘stealing’” or as Lessig would likely say, “What the industry calls piracy” or as Moses would say “theft”, as even the artists who are signed to the “lechers” not to mention the unions, independent artists or in all cases the songwriters are likewise being stolen from. But then I’m an Old Testament kind of guy.)

Geist may want to have a chat with his young fan about toning down the “two wrongs make a right” line of argumentation—it doesn’t work so well with judges–just ask any of the p2p defendants.

As Geist told Torrentfreak, a frequent publisher of Geist’s writings and calls to action against the Yanks Under the Bed, “’…most of my P2P downloading tends to be torrents of video files of recent lectures or other video content.’ BitTorrent is his application of choice for downloads.” I’m not quite sure what he meant by “other video content” but it sounds like Geist himself is a good example of a potential customer of Defendant Fung.

So it should not be a surprise that Geist’s view is that he is shocked, shocked, that there’s booze in that post office:

“[Defendant Fung’s] filing [in a related Canadian case] is well worth reading as it explains BitTorrent technology and argues that [Fung’s] isoHunt is a P2P search engine that merely indexes torrent files found on other indexing sites (it describes itself as a Super-Indexer).

Further, it notes the limits of its involvement in the copying process as well as its compliance with the DMCA notice-and-takedown system. isoHunt clearly tries to position itself as a specialized search engine that does not host infringing content.”

Sound all professorial right? Not so much. Everyone knows where the booze is, Mr. Geist. (Aside from the fact that the safe harbors of the DMCA don’t apply in Canada and Geist has resolutely opposed the adoption in Canada of anything that involved a “takedown” preferring the “notice and notice and notice and notice and notice and notice and notice and notice and notice and notice….” method.)

Geist’s line of thinking clearly misses the point and was not at all persuasive to Judge Wilson:

“…Defendants’ inducement liability is overwhelmingly clear…evidence of what the Supreme Court has termed the ‘classic instance of inducement’ — a statement that ‘broadcasts a message designed to stimulate others to commit violations.’ Defendant Fung made statements on the Isohunt website encouraging or assisting infringement. He posted on his website a message telling the website’s users that they should ‘try Peer Guardian,’ a software application that can be used to frustrate copyright enforcement against file sharers.” (p. 15)

But the following is the kind of thing that makes a judge cast out the offender, hoping that he will never darken the Court’s door again (whilst leaving Defendant Fung thanking his lucky stars there was no referral to a U.S. Attorney):

“[T]he Fung websites have honorary ranking systems for those who posted a certain number of forum users messages; ranks include titles such as “I pir4te, therefore I am” and “All Day I Dream About W4rez.” In other words, the websites bestowed honors by identifying users as copyright infringers. This is strong circumstantial evidence that Defendants promoted their users’ infringing activities by consciously fostering a community that encouraged – indeed, celebrated – copyright infringement.” (emphasis mine)

So when the facile “search engines and the like” start behaving like Defendant Fung, then they will lose their cases, too. Until then, such analogies should be rejected as the red herrings they are, parading across the stage. However similar the actions of these search engines, it will take access to their internal emails to discover whether their employees shared Defendant Fung’s disdain for the law and actively induced infringement.

Perhaps the very well funded Mr. Geist should be doing some Canada research in line with the substantial Industry Canada grants that fund his operations in Ottawa—perhaps some research on Canada’s carbon footprint. (Particularly given the recent insights into hitherto unknown levels of carbon consumption by Google.) It’s certainly not my tax dollars, but it does seem unseemly to put a recipient of the distinguished Canada Research grants in the dubious position of defending a self-admitted international bad boy like Defendant Fung, no matter how attention starved he may be.

How exactly is it that a law instructor like Geist, who presumably took an oath at some point to uphold the law, can do anything but openly condemn such behavior?

Everyone knows where the booze is, Mr. Geist.

Case 2:06 Cv 05578 Svw Jc