Diebold's Solution To E-Voting Problems: Beg Poll Workers Not To Touch Touchscreens

Yahoo, Amazon And Apple Dragged Into Copyright Infringement Lawsuit For Twenty Year Old Song

from the it's-tricky dept

Thu, Oct 5th 2006 4:35am — Mike Masnick

A few weeks back, we wrote about the story of how 1970s one-hit-wonder The Knack had suddenly noticed that Run DMC had sampled their 1979 song "My Sharona" in Run DMC's 1986 hit "It's Tricky." So, even though this was twenty years after that had happened, they decided to sue for copyright infringement. Perhaps the royalties on that one hit were finally starting to dwindle. Of course, as we noted at the time, there is a statute of limitations to deal with: apparently it's three years. So, how do you get around that? Easy. You just sue for every time the song was purchased in the past three years. And, of course, why stop at suing just Run DMC? Why not sue the online retailers who sold the song in the past three years. Stephen Bryant has looked deeper into the lawsuit and found that Yahoo, Apple and Amazon are also charged with copyright infringement in the case, for having the gall to sell a popular music hit from 1986 that The Knack just noticed sampled a portion of its song. If you're wondering why it's only the online retailers that are being sued (I certainly am), the reasoning from the lawyer involved is that: "because they copied and sold the infringing work." This, of course, makes no sense. They copied and sold the song because the labels that believed they had the right to it, gave it to them to do so. That's the exact same way that those labels gave brick-and-mortar stores, such as Wal-Mart (who is not being sued) the song in CD format. They "copied" the song onto the CD and then "sold" it. The more you read about this case, the more it sounds like a desperate attempt to get some extra publicity for a band well past its prime.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

39 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

clueless, 5 Oct 2006 @ 5:01am

wrong, but dumb anyway
writer's comments about Wal-Mart having as much complicity in this as Apple & Yahoo aren't quite right. Apple, etc. are being charged with copying and distributing the infringing work. Wal-Mart wouldn'thave necessarily done any copying in their B&M stores where the CDs were sold - they just distributed. Of course, I didn't look to see if it's available via walmart.com music downloads.

that point aside, i'm sure there is something in their contracts with the labels that insulate them from liability by putting the onus back on the label for distributing infringing works.
[ link to this | view in thread ]
ScaredOfTheMan, 5 Oct 2006 @ 5:01am

Everytime I read about this stupidity, I think to myself....where would we be without lawyers....
[ link to this | view in thread ]
4playr, 5 Oct 2006 @ 5:01am

dayum!
i can't understand a word of what was said above. Maybe it's cuz' its evening and my brain is actively seeking something else than a computer screen.
Anywho, who comes up with these dorky law suits?!

it happens only in US of A. I hope it does not spread.
[ link to this | view in thread ]
RantMax, 5 Oct 2006 @ 5:19am

Who would've thought
Morality doesn't overlap with law!

This is what happens when you build law around a bunch of pedants who are willing to go out of their way finding holes in the description of a law, versus follow it's meaning.

Or "spirit" as they like to say.

If one could vote that alws should be implemented according to their common sense, logical understanding, versus some twisted psycho lexical analysis, we'd not have such crap.

Now *of course* you can't touch or smell common sense, and it may even change with years, but that's all good right? As long as most people agree a law means X and not Y, "justice" will prevail, versus stupidity.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 5:25am

Re: wrong, but dumb anyway
no, there is no difference between apple and wal-mart selling a song. they're both just distributing it.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 5:30am

Another BS lawsuit, WTF is a matter with people today. Lawsuits just so they don't have to work. 20 years later, come on. This is 1 thing wrong with our nation that needs to be taken care of for good.
[ link to this | view in thread ]
ItsJustMe, 5 Oct 2006 @ 6:11am

Its the American way, if you can not earn your money, sue for it. One of the biggest problems with this country is the American Civil Liberties Union. A bunch of left wing lawyers suing any thing that makes them money or gets publicity.
[ link to this | view in thread ]
eprep, 5 Oct 2006 @ 6:18am

Biz Markie Will Tell You It's Tricky
Good luck with this lawsuit. Run DMC and many other rap groups samples songs without peril for most of the 1980s. In fact, there was very little precedent for groups "clearing" samples until Biz Markie (and label Cold Chillin' records) got nailed for sampling "Alone Again Naturally" in his "Alone Again" single. [see: http://www.columbia.edu/ccnmtl/projects/law/library/cases/case_grandwarner.html] At the time "It's Tricky" was released in the 80's, Run DMC arguably was unaware that such clearances were required, which might relieve the punitive action of the lawsuit. I wonder how many rap songs of the 1980's ever cleared their samples until the infamous Biz injunction.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 6:42am

apple "copys and distributes?" and walmart doesn't?

i guess it's arguable, however, both wlamart and apple (et.al.) do distribute materials. apple doesn't "copy" so much as it makes available the license that was granted to them. so, if you go after apple, go after the production facilities/record labels that make the cd's for walmart. i think that would be more fair. like as you said, apple (itunes) and walmart were selling "premade" copies of the song.

the difference is that walmart got it's copies from a production facility/cd plant. while apple got one song fromthe label that customers may download and authenticate. so is it itunes fault? no.

here goes. itunes has a song, avaliable for dl/purchase. they got the song from a recording label. the rl were the ones who "made the copies" by allowing apple to distribute the title.

but in a way, it's kinda nice to see artists go after funds w/o the riaa...unless the riaa is be hind this somehow...

sheesh
[ link to this | view in thread ]
Chris Castle, 5 Oct 2006 @ 6:44am

Less than meets the eye
Major labels would typically clear samples in the 80s and early 1990s, until the process got too burdensome and they shifted it to the producers and the artists. That gave rise to a number of sample clearance companies, such a Diamond Time in NYC. A fairly customary licensing regime was in place by 1994 or so that continues today.

I seem to recall that NWA sued Public Enemy for sampling in the early 90s, so the legal actions weren't taken only by the labels.

It's pretty customary for distributors and retailers to be named in copyright infringement cases. It is innacurate to say that WalMart "copies" the physical CD. WalMart "buys" copies of the physical CD (in quotes because they have an almost unfettered right to return what they don't sell). iTunes and other online retailers actually make copies of the digital recording.

There was a lot of misinformation in the early days of sampling where rap artists got very bad advice, such as all samples were fair use, you could take 8 bars without penalty, and other legal gibberish. (Not dissimilar to what you see in the p2p world now.)

That got sorted out, and while there is still a lot of shenanegans with sampling, you don't have people telling copyright owners that the artist can take whatever they want, change it and no one can catch them. They may still think it, they may still do it, but they've learned the hard way not to throw it in anyone's face anymore.
[ link to this | view in thread ]
Yakov, 5 Oct 2006 @ 6:47am

Solution
Here is fix. A judge should force these idiots to pay court costs and legal fees. And let apple and others be liberal with figuring out the numbers. These lawsuits should be made so risky that this crap wont happen again.
[ link to this | view in thread ]
MusicMan, 5 Oct 2006 @ 7:12am

Hey Hears a though get rid of laws and paychecks
I am assuming Techdirt is run by stuck up rich dudes who never worked a day in thier life. That think laws are bad

Because any time someone steals the work of others, they seem to think its ok

And no one deserves to get paid for their work if it can be digitally copied.

That is short of 1900's thinking.. "Martha, if I can't touch it why should I pay for it."

Copyright laws exist... If the stolen material is still being sold and people are still making money off it, there is an active copyright violation.

And the interesting thing is that online music is not just distrobution, it is publication (copying and selling of material in a digital formart)

This is the kind of case the has to happen to define the laws. We'll see if this is an issue or not, but flat earth thinking about intellectual property is not the answer.
[ link to this | view in thread ]
Boudicia Dark, 5 Oct 2006 @ 7:22am

Re: ACLU is for ALL Americans
"The mission of the ACLU is to preserve all of these protections and guarantees:

Your First Amendment rights-freedom of speech, association and assembly. Freedom of the press, and freedom of religion supported by the strict separation of church and state.

Your right to equal protection under the law - equal treatment regardless of race, sex, religion or national origin.

Your right to due process - fair treatment by the government whenever the loss of your liberty or property is at stake.

Your right to privacy - freedom from unwarranted government intrusion into your personal and private affairs."
[ link to this | view in thread ]
Is this important, 5 Oct 2006 @ 7:27am

Why sue the distributors? Are they suposed to carefully listen to each cd they want to sell just in case there is a sampling from an old crappy song that no one ever heard of ... this is ridiculous
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 7:29am

20 year old song
How about we take out all the lawyers and let them fight it out the old way? Things would be a lot simpler
[ link to this | view in thread ]
Chris Castle, 5 Oct 2006 @ 7:46am

Distributors and retailers are sued in part because their participation in the infringement is usually unclear at the outset of the lawsuit.

If the distributor and/or retailer is innocent, then they can usually get dismissed from the lawsuit early on. The plaintiff copyright owner also wants to be able to discover information relating to the case from all in the distribution chain.

Every copyright is given equal dignities under the law, and there is no determination permitted that because a song is old and crappy it gets no protection or less protection than a super cool free culture tune. Same would be true of "Pong" compared to WOW.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 7:58am

making lawsuits very risky by enforcing High lawyer fees to be paid by whomever loses or brings false chages and whatnot is a bad idea. i do believe in having actual cort costs being baid by losers/people who drop cases. in many caeses, someone files a case for the noterity/publicity then drops it just as easily. they don't pay court costs and whatnot, but get free press. if they would have to cover the "defendants" costs. it should help to reduce the abues of the legal system.

and to #12, TD has always aserted the illegality of copyright infringment. What TD does is bring to light the various issues dealing with CI and the like. Mike had a post on another thread abut gambling yesterday. read that.
[ link to this | view in thread ]
jsnbase, 5 Oct 2006 @ 8:01am

Re: Hey Hears a though get rid of laws and paychec
Acting like all issues that touch upon copyright infringement are identical isn't the answer, either. The sampling debate is over; if you talk about it as though it's morally equivalent to Limewire then you sound like a lunatic.
[ link to this | view in thread ]
RobG, 5 Oct 2006 @ 8:33am

So, all in all, TechDirt would be happier if we had no laws and if the rights of artists were not protected in any way? Why stop at artists? Why not make it OK to for drivers to hit pedestrians or for grown men to have sex with teenage boys?
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 8:45am

to #19... are you a dumbphuck? TD believes in laws. It believes in copyright laws. what TD has a problem with is the illegal abuse of poweres sensless "assumed protections" unter those copyrigh laws. td would like to see an overhall of the system to reflect modern times and find a new way to work with technology and all those in the copyrigh world come to an agreement of how to handle situations where artista are rewarded farily.

or at least that's how i see it

**Note: this post is not an official release of TD. it is just a random user's interpretation of articles and comments posted in the TD arena/world.
[ link to this | view in thread ]
satan, 5 Oct 2006 @ 8:49am

Knack
what a joke.
[ link to this | view in thread ]
JohnnyZTS, 5 Oct 2006 @ 8:50am

Knack on Wood
I loved my Sharona. Three cheers for the little guy. Maybe some of these rip off artist will check there sources before they use other peoples work for financial gain. There should be no statute of limitations for starving artist. I bet everyone here would jump on the chance to make money off something they produced thirty years ago. The song belongs to the artist and no one should blame them for trying to make money off it any way they can
[ link to this | view in thread ]
Need no stinkin' lawyers?, 5 Oct 2006 @ 8:51am

Re:
Where would we be without lawyers? Anarchy. When you are constantly worried about personal security, you would have no time to think about such high-level luxuries as copyright infringement.
[ link to this | view in thread ]
jsnbase, 5 Oct 2006 @ 8:53am

Re: Knack on Wood
The Knack = the little guys? Run DMC = ripoff artists?

Wha?
[ link to this | view in thread ]
anoymous lawyer in training, 5 Oct 2006 @ 9:01am

Re:
i dont think it is always the lawyers fault, it is the bands who think that they can sue someone, and then consult a lawyer. Lawyers are like I'll take 15% of that. If you got a crazy ailment, you gonna go to a doctor, he'll take care of it, for 15% or whatever. Are we gonna sue every dj too, that has ever played a record in a club too, I think its a great idea :)
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 9:30am

I didn't realize the band even had a prime...
[ link to this | view in thread ]
Patrick Havens, 5 Oct 2006 @ 9:31am

Um it seems TechDirt is more concerned with the fact the lawsuit is frivilous.

The statute of limitations has run out on the fact the song was sampled.

The distributors are given the music on the assumption (by the record labels/distributors) that it's legal to sell it. In fact they may be forced to sell, or strongly suggested to sell some of the music.

To sue the sellers of the music doesn't make sense.

FYI - during the late 80's when the flaps where going on about sampling... there where lots of lawyers and firms ambulance chasing by listening for sampling and contacting the affected artists. It seems surprising that the Knack didn't have at least one if not more point out that their one hit was sampled.
[ link to this | view in thread ]
JohnnyZTS, 5 Oct 2006 @ 10:14am

Re: Re: Knack on Wood
wha? did I stutter?
[ link to this | view in thread ]
jsnbase, 5 Oct 2006 @ 10:18am

Re: Re: Re: Knack on Wood
No, I just wanted to indicate that you may have overstated your point. I see now, however, that you're simply gut-wrenchingly stupid. Carry on.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 10:29am

Re: Less than meets the eye
iTunes sells you the license that they purchased. Wal-Mart sells you the CD they purchased. The file transfer itself shouldn't be considered copyright infringement.
[ link to this | view in thread ]
Anonymous Coward, 5 Oct 2006 @ 10:30am

if i "invent" a color, and someone uses the color to make a painting and sell it for millions of dollars, can i sue for all that money. it was MY color after all, right? what about if that paitner changes my original color slighty, but enough to make a "noticable" difference?

sampling is the same thing. take something established, modify it, and sell that. it happens everywhere. like come on, how many cars out there are virtually identical except for the placement of a steel beem, or a radio knob?

plus 30 years is a long time to hold onto conetent. i'm supprised the RIAA isn't in on this, suing knack because their "licenese" extended to the original release, right? because if i own a tape of a song, i can't dl a cd qulaity mp3 of it, right?
[ link to this | view in thread ]
Dan, 5 Oct 2006 @ 10:51am

Nothing to see here...
While I admit that "Raising Hell" was a great album way back in the day, I think it's probably past the point of flying off the shelves - so what are we talking about here?

Russell Simmons, mail The Knack their check for $3.72 to cover all sales of the album and downloads for the past three years and call it a day!

I think the overlooked point here is the grotesque use of our court systems to deprive the widow and kids of Jam Master J of food and shelter. Heartless bastards! Really, people, THINK ABOUT THE CHILDREN!
[ link to this | view in thread ]
Spartacus, 5 Oct 2006 @ 10:51am

copies? copies? THINK ABOUT IT!
What cracks me up is that people here actually think Apple (since that is the most common example) is actually making copies and then selling those copies and the copy they made is gone or something so they have to make another copy to sell. Think about it people. Apple has a server (probably many so they may have made enough copies for each server) with ONE copy of the song on it. When someone downloads that song THE COPY OF THE SONG IS STILL FRICKIN THERE AND APPLE DOESN'T HAVE TO MAKE ANOTHER ONE OR SOMETHING. Apple isn't the one making copies, it's the USERS of Itunes who are "making copies". Sheesh... some people don't understand basic file sharing concepts.
[ link to this | view in thread ]
Mike (profile), 5 Oct 2006 @ 11:20am

Re: Hey Hears a though get rid of laws and paychec
I am assuming Techdirt is run by stuck up rich dudes who never worked a day in thier life. That think laws are bad

You can assume that, but you'd be wrong. The risk we all take with assumptions.

Because any time someone steals the work of others, they seem to think its ok

This is not true. Though, you use a few leading words there. First, you need to separate "stealing" and "copyright infringement" which are two very different things. Second, there's a difference between "thinking it's ok" and "realizing you can make a bigger business by not trying to control so much."

And no one deserves to get paid for their work if it can be digitally copied.

Again, this is not true. We do believe, however, that market forces will tend to drive price to marginal cost over time, and if the marginal cost is zero, then you're going to face a problem in the market. History and economics tends to support this. It's not about what people "deserve" but what the market will bear.

Copyright laws exist... If the stolen material is still being sold and people are still making money off it, there is an active copyright violation.

Yes, copyright law exists, but that doesn't mean it's always reasonable. Either way, I again suggest you learn the difference between "theft" and "infringement." It's important.

This is the kind of case the has to happen to define the laws. We'll see if this is an issue or not, but flat earth thinking about intellectual property is not the answer.

I'm sorry. You think that coming back 20 years after the actual issue occurred and suing *is* the answer?
[ link to this | view in thread ]
Panaqqa, 5 Oct 2006 @ 11:35am

Point of Information...
"The Knack" was not a true one hit wonder. Their song "Good Girls Don't (But I Do)" also made the charts.

Want a true one hit wonder? "Afternoon Delight" by The Starland Vocal Band. That one's been sampled and used all over the place in the last 30 years, and I don't see any lawsuits there. Perhaps the song's a bit lame for RunDMC to use.

Trivia: Starland Vocal Band parlayed that one hit song into a short lived TV series, "The Starland Vocal Band Variety Hour" which was notable only because it featured the first regular TV appearances of the up and coming David Letterman.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2006 @ 9:13am

Re: wrong, but dumb anyway
True, the brick-and-mortar store only distributed copies and not copied copies.

BUT, if you would all turn to Section 106 of the U.S. Copyright Act, {waiting while you all get there...}, you'll see that one of the six exclusive rights granted to copyright holders is the exclusive right to distribute copies of the work. Distributing without a license is just as much an act of infringement as copying.

(First sale doctrine won't help here, since the infringed party never authorized the original copy--At least if I accept as true the plaintiff's allegations.)

The real reason nobody is focusing on brick and mortar is probably less interesting -- The physical CD has probably sold bupkus in the last three years, and therefore there's no money to be made in suing over those sales.
[ link to this | view in thread ]
Anonymous Coward, 6 Oct 2006 @ 9:16am

Re:
The online retailers certainly all have agreements with the record companies that provide for the record company to cover the damages from lawsuits like this. It all comes out of the record label's pocket in other words.
[ link to this | view in thread ]
Anonymous, 6 Oct 2006 @ 11:27pm

#36 about has it right
This is a test case of how to truly prosecute copyright infringement. Not the way RIAA/MPAA have attempted to (extortion).

If our copyright system is to remain viable for all parties (artists, holders, consumers...) in the future it must have a standard that is stable in modern mediums.

Doomsday scenario: everything falls into holder's hands and we will be paying for every copyrighted work in every format we use - multiple times!

(iTunes, Rhaposdy, DVD, HD-DVD, CD, ringtone, satellite radio, eBook, PDF, book...are we nearly there already?!?! AHHHHH!!!!!)

The fact that distribution can be done digitally with little effort and monetary input was not something our founders considered and case law must be established to clairfy this point for the future. So we have to take a look at the exact methods/processes of transportaion that are used by distributors.

A distribution right does not imply a copying right or vice versa. Just because you have a right to distribute doesn't mean you're allowed to make copies to sell.

If Apple, Yahoo, Amazon, & Wal-Mart are found to have copied (not allowed) and then distributed (allowed) then they are guilty of copyright infringement.

The fact it was a one-hit (two-hit now?) band, sampled by an early rap group, and the song which went on to be one of the rap group's better-known is purely coincidental and is only of note to bring it to 2006 where it can be tried in a court of law.

Stick to the facts at hand and the question posed:
Are licensed electronic distributors making copies of songs to then distribute electronically?

History: remember certain bands railing against DAT tapes & CDs early on and then the recording equipment that came out? "They can make perfect copies of our works!!!" This is what got the wonderful Home Audio Recording Act passed here in the states (and a tarriff on DAT tapes) and a similar situation in Canada (and a tarriff on blank CD-R disks). This can be considered a precursor to the Knack's case I feel.

I digress - back to you normally scheduled programming.
[ link to this | view in thread ]
SIR SCRATCH A LOT AKA JAMMIXER SOL D., 7 Oct 2006 @ 7:32am

Re: Biz Markie Will Tell You It's Tricky
Yeah I'd be one of those guys who was told "8 bars" and you're legal...funny thing I actually had a safer-sex song called "Protect Ya'Self" in '94 that sampled RUN-DMC when DMC said "your stupid monkey a--, ya' didn't protect ya' self!" I don't remember the song, it was off the RUN-DMC album where they had all those New Jack Swing beats. Profile Records was cool, they knew I wasn't rich and only charged me $1,500 for the mechanical and $1,500 for the royalty/performance or whatever that other thing is called.
[ link to this | view in thread ]