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.
"Happy birthday" made Warner a ton of money of the years, and it was all fraud. Most of the damages cannot be recovered (many of those harmed are dead of old age!). Thus long term fraud needs to be discouraged, one way you do that is ensure that the punishment is greater than the value of the crime.
I think you are misunderstanding.... the judge is NOT imposing a higher judgement against the defendants.... this is just deciding that the lawyers are deserving of a larger percentage of the already-agreed-upon settlement amount. This is in no way punitive.
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.
> ... the judge is NOT imposing a higher judgement against the defendants.... this is just deciding that the lawyers are deserving of a larger percentage of the already-agreed-upon settlement amount.
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.
> What annoys me about this is that the extra payment does not appear to have been decided based on losses, but more punitive
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.
Were they guilty of fraud? I don't think the court found that.
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.
There were definitely elements of 'significant attempts to mislead'.
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.
Trying to find something definitive, and some of my details weren't accurate:
"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."
It's one of those crimes that requires knowingly lying. If you can convince the court that you were honestly mistaken, who's to say that you weren't? It might be hard to enforce in this case.
The original they provided a copy from wasn't blurred/smudged and they claimed under oath that it was? Sounds pretty clear cut - are they going to claim they had a booger on their glasses or something?? The smudged bit being the vital information pertinent to the case, seems to be beyond reasonable doubt on that basis, would be interested to hear the story their lawyers concoct ... sure it would/will be equal to some of Disney's greatest works of fiction.
When someone abuses the legal process to copyright something, and then aggressively protects those bogus rights, they need something that dissuades them from doing it again.
It sounds like it's basically an award for taking on complex, risky work that resulted in something positive for the public. Perhaps he's trying to set a precedent/example to entice other lawyers to consider pressing these kinds of cases.
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"
I've followed this case closely and those lawyers deserve to be rewarded for pursuing such a public good. In a time and age where Copyright is ridiculously abused, this is, to me, one of the best kind of battles. Music industry lawyers are, in my perspective, some of the best at their profession - a victory against them is a good indication that there are merits in exposing fraud of this type.
Happy Birthday, Dimebag Darrell. He would've turned 50 today.
> Five lawyers billed the "vast majority" of the hours, charging rates that varied between $395 per hour and $820 per hour. The most work was done by Randall Newman, who billed 2,193 hours at $640 per hour. King found the rates were all reasonable given "the cases cited, the National Law Journal survey, and our own experience."
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!
> Surely the contribution of these people to civilization is well correlated with the economic benefits reaped.
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.
It was a rather tongue in cheek comment. The assessment of value changes depending on where you begin your inquiry; if you look only at the immediate situation than effectively yes, these lawyers have provided a tangible public service.
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).
Copyright creates enormous wealth. You can't have markets if you can't have transactions, and you can't have transactions in software if you don't have copyright protection. You're limited to this impoverished world where the software creator has to lock it behind a services API in order to monetize it. The world benefits enormously from just being able to sell software, movies, etc. as you would a physical product.
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.
> Copyright creates enormous wealth. You can't have markets if you can't have transactions, and you can't have transactions in software if you don't have copyright protection. You're limited to this impoverished world where the software creator has to lock it behind a services API in order to monetize it. The world benefits enormously from just being able to sell software, movies, etc. as you would a physical product.
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.
Working within the copyright system that exists and affects us all should not be misinterpreted as agreeing with copyright.
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.
This is silly. The software FSF is most opposed to is protected not as much by copyright as by simple trade secrecy. It's not from honoring copyrights that DRM systems derive their power; that would be tautological, since the point of DRM systems is to thwart people who ignore copyright.
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.
> 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.
The FSF is not opposed to copyright as a concept. You can argue over duration, but copyleft would not be possible if everything were in the public domain.
> The FSF is not opposed to copyright as a concept. You can argue over duration, but copyleft would not be possible if everything were in the public domain.
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.)
GPLv3 mainly added new clauses to deal with other "intellectual property" laws that people started using to "protect" their source code such as patents, TIVO-ization tricks, and DRM. GPLv2 was written back when copyright was the only thing people were using to prevent sharing of their code.
> 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.
That's true, but for sufficiently large organizations, it would only be a matter of time before the code associated with the binaries was leaked, and without copyright, you would simply be able to use that leaked code.
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.
That's only one way to get there. Product regulations could require that source code be available in all cases, separate from any copyright or licensing factors.
this impoverished world where the software creator has to lock it behind a services API in order to monetize it. [..]
A world without copyright is [..] one where you can only watch movies in theaters, or stream them onto locked down devices
I'm not convinced that exclusivity is the only way to generate money for software development and other creative works. What about getting paid in order to perform work, instead of for having performed work?
>"Happy Birthday to You" is almost universally known in the English speaking world
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.
Except guess what ain't free yet? All the filings and work these lawyers performed in the public domain for the case. That'll cost you from PACER despite evidence that court filings don't cost as much as the government says they do and then the surplus goes to other efforts. Hopefully some lawyer get PAID to change that.
Please make sure to use RECAP when you use Pacer: the docs you access are dumped into the Internet Archive, and if the docs already exist in the Internet Archive, they can be retrieved from there instead (to reduce PACER costs).
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.
Is it a "racket"? No. Are the fees "just"? Well, I honestly don't know. It probably varies on a state-by-state basis but here in Florida the title fee is likely outdated and unnecessary considering that it is all handled electronically and the cost to transfer and store such information is likely fractions of a percentage of a penny. The original cost of the title fee stems from what I can only assume is the cost of paying people to file and retrieve such paperwork.
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.
> 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)
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).
If a law said they were only legally allowed to charge for the cost of supplying the paper/ink and labor involved yet they charged a flat fee that in the aggregate that was magnitudes larger than what it cost...yes. That's the analogous scenario here.
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
Agreed. We should be paid much more for building these apps that transfer so much wealth to investors. As far as I can tell the folks who do the actual work of making software companies money receive far too small a share of the proceeds.
Here in the US we wage battles of virtues and get paid for it, not manufacture some stupid cheap memory modules or phone system boards that power everything.
Something people seem to have missed. The lawyers did the case on a contingency fee basis. That means if they lost, they would get nothing. They took a risk so the judge is rewarding them for taking that risk.
It's because a settlement is a compromise between the parties in the suit, not an official legal finding. Thus, legally speaking, no position is taken on whether or not Happy Birthday technically was in the public domain already.
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.
Thanks for the link, the document says that the Court declared the song to be in the public domain. The ars article is a bit misleading then as it seems to imply that Warner somehow placed it into the public domain.
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.
Yeah, the way it works is that the court implements and enforces the agreement between the parties, using those fun legal powers -- that's why the judge had to approve the agreement. So a more accurate statement would have been "Warner agreed to have it placed in the public domain".
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.
I've always drawn systemic problems of our social progress back to incentives, and a major complaint I often bring up is "Who is incentivized to fight for the public domain? For common sense?" There are strong financial incentives the other way, to legislate lock-in and go against what's in the best interest of the nation & world.
It's great to see that there are ways to incentivize fighting for the public domain.
Inconsistency is annoying, especially in the dubious business of policing tone. Then again, I suppose it's the result of a well moderated community that you're left with idle hands to bother me with. :)
If you're asking about https://news.ycombinator.com/item?id=12285576, that wasn't off-topic, and it was substantive because it alluded to a historical fact (assuming that fact is true—I haven't checked). It was a one liner, but not overly snarky. I don't see a need for moderation there.
Well, i guess i should have become a lawyer then. I don't think awarding millions to a single person is ever reasonable. It might be the logical thing to do if scarcity is very high, but 'reasonable'? I feel this is the judge rewarding his own tribe.
> I don't think awarding millions to a single person is ever reasonable.
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).
Except that the minimum fee is 350$ an hour. If they worked for the standard 180 hours a month for 12 months they'll get something like a 700,000$ salary.many of the lawyers.probabaly did take home several million dollars in fees.
When a lawyer bills hundreds of dollars per hour, doesn't that actually include the assistance of paralegals and everything else that goes into supporting a lawyer? It's not like that's the lawyer's take-home pay.
Right. And, in fact, it's specifically the lawyer's "billable hours" which are < the number of hours worked. (i.e. it doesn't include continuing education requirements, administrivia, etc.)
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.
The largest sum billed by a single attorney was $1.4 million, and he obviously took home only a fraction of that. So the statement "several attorneys" were paid "several million" is provably false.
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.
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.