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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 13, 2018 6:23 pm 
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Bastiat wrote:
I don't know what a HELP license is nor do I care and I'm not trying to be coy here, but I really don't know and I really don't care to know. What I can tell you however is that if it is a license in the truest sense of the word then by definition alone it's different. I'm sure you're smart enough to know the distinction between a license and a settlement but if you need me to explain it to you I'd be more than happy to do so.

I know the difference between a license and a settlement and settlements usually don't allow an infringer to continue to infringe.

It's important for you to understand what a HELP license is in order to understand why your description of the CAP program is essentially the same.

Here are the common points between the two:
#1. No physical or digital product is sold, transferred, exchanged, etc.
#2. Digital product is obtained from third parties illegally: downloaded from IRC, purchased on hard drives, etc.
#3. Infringer receives a covenant not to be sued in exchange for a fee.
#4. Infringer is allowed to continue using infringing materials

Here are the DIFFERENCES between the two:
#1. CAP had a 1 time $3,000 fee, HELP is an ongoing monthly fee ($129 and up)


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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 14, 2018 1:55 am 
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Bastiat wrote:
CAP was a monetary settlement not a sale of its products or a license to use them. There was no exchange for products, or a license to use existing products. The CAP program did not allow for future infringement of our catalog

the rest i get, but this part does not sound right because
“These certificates hold harmless and protect the certificate holder from any legal action that might be initiated by the KIAA or Stellar Records for the unauthorized usage, either past, present or future of specific Stellar Records’ products including, but not limited to those accompanied by a visual lyric display file (karaoke format), or for the use of any Stellar Records’ trademarks that may be displayed either on-screen as part of a lyrics display, and/or use of its trademarks in the original product packaging. The certificates are limited to the song titles listed in the accompanying exhibit that is attached to the covenant agreement, and as contained in the brands listed on the accompanying Certificate of Defrayal.”

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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 14, 2018 11:48 am 
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That (settlement quote) reads to me as a cash settlement for only the specific (illegal) tracks already had, and in consideration of that payment continued use of just those tracks, not carte blanche permission to go out and get more illegal tracks. A payment for what you already got, and having paid it's now officially yours to use.
Paradigm Karaoke wrote:
Bastiat wrote:
"The certificates are limited to the song titles listed in the accompanying exhibit that is attached to the covenant agreement, and as contained in the brands listed on the accompanying Certificate of Defrayal.”
A CAP settlement (as presented here) is a retroactive purchase of specific and named material, not a license like HELP to steal and go on stealing any and all material, with an ongoing fear of prosecution should you ever stop making your extortion payments.

It's apples and oranges.


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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 14, 2018 2:20 pm 
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the "Accompanying exhibit" is the list of all songs covered under the CAP.
that's where "or for the use of any Stellar Records’ trademarks that may be displayed either on-screen as part of a lyrics display" comes into play.
any song on that list (which covers all products produced between 1995 and end through 2007. This includes the brands UK Karaoke®, American Gold®, Top Hits Monthly® (1995 & 1996), Rising Star, and Pop Hits Monthly®.

Also includes products bearing the unauthorized use of the Top Hits Monthly brand by Panorama (i.e. Platinum Series, Decades, All Time Greats Series, etc.) including the 1999 through 2007 monthly releases.

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 Post subject: Re: Dumb decision
PostPosted: Sat Sep 15, 2018 11:48 am 
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So I'll try to explain this as succinctly as I can without turning this into another War and Peace novel. First let me state that the entire CAP program and all of its supporting documentation was drafted by yours truly without the aid of an attorney. Would I have worded some things differently if I were to do it over again? You bethca. Would I have employed the services of a qualified IP attorney? Yes, again. However with that being said, the program did capture the essence of what I was trying to accomplish with the CAP program. So here's the issue in a nutshell:

A contributory infringement is committed at the point of acquisition of the illegal hard drive and not with the USE of the content (except for use in a public performance where the PRO fees have not been paid). At first blush this may seem like a subtle difference but it is a theorem essential to the drafting of a settlement agreement that will hold up in a court of law. With that being said, the CAP agreement not only identified certain products, but also the drive on which the content was stored. This was designed to ensure future infringements would not occur or at the very least discouraged (bear in mind that future use of the content is not an infringement but future acquisition is). One of the questions that arose when drafting the program and one of the few areas where I did seek legal advice was whether or not I could demand that the drive be destroyed, erased or otherwise forfeited, and believe it or not I got diametrically opposed opinions ranging from yes I could, to no, and you could be counter-sued. Seeing that the whole point of the CAP program was an effort to avoid litigation I took the safe route and decided to not try to confiscate the product in any way.

So in the end I was charged with determining what the nominal settlement amount would be that could reasonably be enforced and sustained throughout the length of the agreement. What I came up with was obviously arbitrary. Could I have sought more? Probably, but I guess that at the time I didn't sense that I could have without having to litigate an inordinate amount of those cases. Could I have worded it differently to better reflect its perception? Maybe ... but that's a big maybe because at the end of the day, it would still have "quacked" the same way.


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 Post subject: Re: Dumb decision
PostPosted: Sat Sep 15, 2018 2:07 pm 
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Thanks for the explanation and I appreciate your honesty.

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 Post subject: Re: Dumb decision
PostPosted: Wed Sep 19, 2018 6:22 am 
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Bastiat wrote:

So in the end I was charged with determining what the nominal settlement amount would be that could reasonably be enforced and sustained throughout the length of the agreement. What I came up with was obviously arbitrary. Could I have sought more? Probably, but I guess that at the time I didn't sense that I could have without having to litigate an inordinate amount of those cases. Could I have worded it differently to better reflect its perception? Maybe ... but that's a big maybe because at the end of the day, it would still have "quacked" the same way.



8) So in the end what you settled for was an amount you thought could be paid, and avoid the cost of litigation. At the risk of being insulting, I have to point out that PEP in a similar manner, is trying to recover money in the same way. Trying to collect what they can, and avoid the cost of going to court. If the truth be known, most hosts that have resisted paying anything, have not had to pay anything. Since the cost of going to court, would outweigh what ever was recovered. That has been the whole problem with any recovery attempts by manus, you have to find the deep pockets, that will cover the costs involved, with the legal recovery process. PEP's answer in the end was to go after the venues, the deep pockets. They also tried to setup their own entertainment service, to under cut independent hosts. When faced with the realities of the situation, I don't really see how as a business strategy the legal process is a viable solution to the whole concept of recovery. Yes you can mine gold, but only if the recovery process costs less than the value of the gold.


Last edited by The Lone Ranger on Wed Sep 19, 2018 6:39 am, edited 1 time in total.

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 Post subject: Re: Dumb decision
PostPosted: Wed Sep 19, 2018 6:32 am 
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The Lone Ranger wrote:

Since the cost of recovery would out weigh the cost of going to court. That has been the whole problem with any recovery attempts by manus, you have to find the deep pockets, that will cover the costs involved, with the legal recovery process. PEP's answer in the end was to go after the venues, the deep pockets. They also tried to setup their own entertainment service, to under cut independent hosts. When faced with the realities of the situation, I don't really see how as a business strategy the legal process is a viable solution to the whole concept of recovery. Yes you can mine gold, but only if the recovery process costs less than the value of the gold.


It seems futile the "One KJ Show in Alaska" setting up a "Dominate Presence" to present to the courts.

As to the venues, I suspect they (pep) really didn't have a clue about how much they (venues) actually "Don't Make As Income", so no deep pockets to fleece.

As they used to say, "That's a tough row to hoe".


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 Post subject: Re: Dumb decision
PostPosted: Wed Sep 19, 2018 6:35 am 
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8) Yes JD it is hard to get blood out of a stone.


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 Post subject: Re: Dumb decision
PostPosted: Wed Sep 19, 2018 9:02 pm 
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I'm not in the least bit insulted. While you're conclusions are a bit overstated, you're thinking isn't all that far off. I'm not about to speak for PEP because I don't know what their model or their reasoning is or was, but I think it would be fairly safe to assume that you are correct in thinking that they would try to collect what they can while avoiding the cost of litigation. That would seem to me at least to be a sound business practice. What is not clear to me is where their criteria and thresholds lie when determining when to litigate when they can't agree on a settlement amount or concession to the accusation. I can tell you if it's anything like our thresholds, we use a rough rule of thumb but it does vary depending on the circumstances. I can also tell you that whatever we do is strictly a business decision and not done out of vengeance or emotion, etc. If it wasn't worth our while financially we wouldn't do it. While you may think that "it is hard to get blood out of a stone.", you might be surprised as to just how much a stone will bleed once it realizes that an infringement judgment is not dischargeable in a bankruptcy and that they'll never ever again get credit or ever be able to buy a house or even a car for that matter. A judgment against a defendant for infringement is no joke.

It's a mistake to group all "recovery attempts by manus" as being the same. Litigating a trademark infringement, is an entirely different animal than litigating a copyright infringement especially when it is legally questionable as to whether or not the events in question actually constitute a trademark infringement. In the case of a copyright infringement it's a bit more cut and dry and judges don't have the same kind of leeway to let the defendant off the hook as they do with trademarks which tends to invite challenges by ambitious attorneys willing to take on these cases to full litigation. For example, of all of the infringers we have approached, not a single one has chosen to litigate their case when they and their attorneys have been presented with the evidence. That's not to say that they didn't try initially, but it doesn't usually take too long before they decide it's in their best interest to settle. However, I'd be remiss if I didn't acknowledge that sooner or later someone will try to litigate one of these cases, but I'm actually looking forward to prevailing in one of these cases by decision rather than default.

As far as going after venues ... it may not be for the reason that you stated. Although we have no immediate plans to go that route ourselves, I can see other possible explanations. There's an old saying by John D. Rockefeller that went something like, "it's easier to poison the whole well than to poison each individual glass". It's possible that this is what they were thinking but in the end one might never know what their true motives were. As far as setting up their own entertainment services, if any producer was capable of doing so, they would be one of the few that could pull it off seeing they had a fairly extensive catalog, but I can't imagine that they were all that serious about doing that. I sure as hell wouldn't want to do something like that. The amount of work that it would take to put something like that together would be enormous and it would probably be a lot more profitable to reestablish what they used to do well and profit from that instead.


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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 5:30 am 
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Bastiat wrote:
I'm not in the least bit insulted. While you're conclusions are a bit overstated, you're thinking isn't all that far off. I'm not about to speak for PEP because I don't know what their model or their reasoning is or was, but I think it would be fairly safe to assume that you are correct in thinking that they would try to collect what they can while avoiding the cost of litigation. That would seem to me at least to be a sound business practice. What is not clear to me is where their criteria and thresholds lie when determining when to litigate when they can't agree on a settlement amount or concession to the accusation. I can tell you if it's anything like our thresholds, we use a rough rule of thumb but it does vary depending on the circumstances. I can also tell you that whatever we do is strictly a business decision and not done out of vengeance or emotion, etc. If it wasn't worth our while financially we wouldn't do it. While you may think that "it is hard to get blood out of a stone.", you might be surprised as to just how much a stone will bleed once it realizes that an infringement judgment is not dischargeable in a bankruptcy and that they'll never ever again get credit or ever be able to buy a house or even a car for that matter. A judgment against a defendant for infringement is no joke.

It's a mistake to group all "recovery attempts by manus" as being the same. Litigating a trademark infringement, is an entirely different animal than litigating a copyright infringement especially when it is legally questionable as to whether or not the events in question actually constitute a trademark infringement. In the case of a copyright infringement it's a bit more cut and dry and judges don't have the same kind of leeway to let the defendant off the hook as they do with trademarks which tends to invite challenges by ambitious attorneys willing to take on these cases to full litigation. For example, of all of the infringers we have approached, not a single one has chosen to litigate their case when they and their attorneys have been presented with the evidence. That's not to say that they didn't try initially, but it doesn't usually take too long before they decide it's in their best interest to settle. However, I'd be remiss if I didn't acknowledge that sooner or later someone will try to litigate one of these cases, but I'm actually looking forward to prevailing in one of these cases by decision rather than default.

As far as going after venues ... it may not be for the reason that you stated. Although we have no immediate plans to go that route ourselves, I can see other possible explanations. There's an old saying by John D. Rockefeller that went something like, "it's easier to poison the whole well than to poison each individual glass". It's possible that this is what they were thinking but in the end one might never know what their true motives were. As far as setting up their own entertainment services, if any producer was capable of doing so, they would be one of the few that could pull it off seeing they had a fairly extensive catalog, but I can't imagine that they were all that serious about doing that. I sure as hell wouldn't want to do something like that. The amount of work that it would take to put something like that together would be enormous and it would probably be a lot more profitable to reestablish what they used to do well and profit from that instead.



8) You are right the threshold for recovery will be different with different concerned parties. The Stellar CAP program was set at $3,000.00. In California the cookie cutter settlements were $5,000.00 a piece for those who settled with PEP. The hosts that did not pay up just walked away and didn't pay anything. The estimated 300,000.00 collected for PEP was kept by their agents, and never paid to SC. Have you tried any cases in California? I think you would find it would be much harder to get a positive outcome here. I don't doubt that maybe you can wreck a few lives, but in the end your legal victories would be Pyrrhic. That eventually the cost of legal recovery minus roll over victories, would cause the whole approach to collapse. In much the same manner PEP's efforts eventually failed. Just my opinion of course.

P.S. The proof will be in the pudding, let's see how long you continue the legal recovery process?


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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 8:00 am 
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The CAP program was retired 4 or 5 years ago so it wouldn't be meaningful to use that as a basis for comparison. Here again you insist on comparing what Stellar is doing with what PEP attempted to do. You're trying to compare apples to oranges and expecting to end up with grapefruit juice. Funny how these infringers have been largely responsible for literally driving most producers out of business yet you seem to have this deep concern for having their lives "wrecked" by the victims of their infringements. But what puzzles me most is how you seem to be so sure that our legal victories would be as you claim "Pyrrhic". If they were, I can assure you that we wouldn't be doing it. As you seem to be so sure of these negative outcomes, I'm curious as to what experiences have brought you to that conclusion. Have you been involved in cases such as these in the past or are you just shooting from the hip? Thus far we haven't had to try any cases in California as so far everyone has settled. Should there be a trial there, I don't anticipate any more difficulty in California than I would in any other state. Federal laws are the same laws in every state and somehow I don't think California is any more sympathetic toward infringers than any other state, but if that were to be the case then we would no longer pursue cases in that jurisdiction.


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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 9:20 am 
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8) Your legal recovery efforts have only been known at least to me, for a short period of time. I have only your word for how successful your efforts have been. I have only seen a few reports as to the legal activities you mention. So I will have to wait an see just how serious this whole legal process is really. It will not touch me since I am no longer active in the entertainment industry. Have a nice day.


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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 10:30 am 
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The Lone Ranger wrote:
8) Your legal recovery efforts have only been known at least to me, for a short period of time. I have only your word for how successful your efforts have been. I have only seen a few reports as to the legal activities you mention. So I will have to wait an see just how serious this whole legal process is really. It will not touch me since I am no longer active in the entertainment industry. Have a nice day.


Translation: Shooting from the hip.

No target, just pot shots.

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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 12:11 pm 
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8)
MtnKaraoke wrote:
The Lone Ranger wrote:
8) Your legal recovery efforts have only been known at least to me, for a short period of time. I have only your word for how successful your efforts have been. I have only seen a few reports as to the legal activities you mention. So I will have to wait an see just how serious this whole legal process is really. It will not touch me since I am no longer active in the entertainment industry. Have a nice day.


Translation: Shooting from the hip.

No target, just pot shots.



8) Sometimes a random shot hits the target.


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 Post subject: Re: Dumb decision
PostPosted: Thu Sep 20, 2018 5:34 pm 
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The Lone Ranger wrote:
Your legal recovery efforts have only been known at least to me, for a short period of time. I have only your word for how successful your efforts have been. I have only seen a few reports as to the legal activities you mention. So I will have to wait an see just how serious this whole legal process is really. It will not touch me since I am no longer active in the entertainment industry. Have a nice day.

To tell you the truth I wasn't really courting your approval, much less give two squirts as to whether or not you think it may be successful, but the next time I take on a project of this magnitude I'll consider consulting you because after all your opinion is so much more valuable than those who practice law for a living and have been doing so for 30 or 40 years. Oh and BTW, whether or not you're active in the entertainment industry is inconsequential. If you're not an infringer you have nothing to fear.


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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 21, 2018 9:15 am 
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Another law, another day..
https://www.npr.org/2018/09/19/64961177 ... h-congress


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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 21, 2018 12:57 pm 
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jdmeister wrote:

Without an explicit and exclusive benefit to Disney, this is bad law.

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 Post subject: Re: Dumb decision
PostPosted: Fri Sep 21, 2018 5:50 pm 
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They did something very similar in Europe a week earlier. They've referred to it as a "value gap". The devil is in the details as they say but I can't help but be cynical every time I hear music execs and government getting together. I'll end up getting more royalties, and I already have seen a bump from the Spotify settlements but at the end of the day I'd rather forfeit those royalties if it means publishers and labels will be using Draconian measures against the little guy.

https://rainnews.com/copyright-overhaul ... p-measure/


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