January 27, 2022 Musicology No Comments

Apple and other streaming services were accused of “willful” piracy or of something akin to looking the other way while piracy took place on their platforms. And that’s dumb. But we might consider the question, “should they be made example of anyway? And to whose benefit?”

The case concerns some of the greatest songs ever written, so of course, I’m going to sympathize at least a bit with greatness. The heirs of Harold Arlen, Harry Warren, and Ray Henderson are entitled to the royalties that flow from “Over The Rainbow,” and “Bye Bye Blackbird,” and a bunch of other songs from the so-called Great American Songbook. And I’m not surprised when Apple gets sued for its role — via the iTunes Music Store, mostly — in at least providing a hospitable platform for, if not “enabling” per se, bootleg (illegitimate, unlicensed) recordings of these works to be sold and streamed by a bad actor on Apple’s service.

I have no sympathy of course for anyone who makes illegal copies of a record, sells it right alongside the legitimate record for half the price. If I wrote “Over The Rainbow,” I’d want my great-grandchildren to benefit.

What’s way less obvious though is the concept of “willfulness,” and I’ve touched upon this legal and tactical aspect of copyright infringement litigation before. Rarely do I read a complaint where the plaintiff doesn’t accuse the defendant of willful infringement. And why? Well, perhaps because they believe it’s true. But it’s also very practical. Willful infringement gets the proverbial book thrown at you, a hefty multiplier, and speaking as a musicologist and not a lawyer, since I’m not, I think it’s a mess.

“Statutory” damages are opposed to ‘actual’ ones which are more specifically correlated to the harm to injured party. Either can award much higher amounts where the infringement is deemed to have been willful. To illustrate, suppose there’s an absolutely willful intentional egregious infringement of a song but only a few people heard it, it gained the infringer nothing, and arguably did no harm to the owners of the original song — like a tree that falls in the forest. Actual damages, in this case, are low and arguably zero, right? But statutory damages are more like automatic penalties; and if the infringement is willful as it is in our hypothetical, well, whereas ordinary statutory damages can range from $750 to $30k for each infringing act, but if they’re WILLFUL that can get you up to $150k per infringement;” five to two hundred times higher.

A lot of what I do is preemptively analyze music for commercials and other media. My clients want to avoid infringing obviously, but there’s also this logical benefit: In my view (and again I’m not a lawyer of course, but I’ve yet to have an attorney disagree) when clients have a clearance analysis done, they’ve specifically demonstrated a willfulness to NOT infringe. And good luck to anyone trying to say otherwise.

I’m not down on willful statutory infringement in theory, just in practice.The law makes sense. It’s obviously one thing to accidentally infringe; it’s still infringement, but you get some understanding. To intentionally infringe and just try to get away with it? That’s way worse. Ask that politician in Australia who used “We’re Not Gonna Take It” recently whether the judgment of willfulness worsened his judgment. I think he’d agree that it did, a lot.

But remember those “make an example of them” sorts of judgments from the Napster days? A select handful of kids with music on their hard drives like so many people had when mp3’s were first invented, who maybe simply have clicked the “share” checkbox, like so many others did, were getting hit with judgments of up to $80k per song for sharing their hard drives full of music. Was that appropriate? Actually, is making an example of someone ever appropriate? Isn’t it random and disproportionate by its nature?

Whereas this little UK “record company,” which for all I know is another kid with a hard drive, likely knows they’re doing something wrong, do we really think Three Trillion Dollar Market Cap Apple is willfully infringing on “Over The Rainbow” to get the commission on those sales? Or do we think willfulness is often a bit of bracketing or more plainly just a lottery ticket for plaintiffs? Every case is different, right?

This might come as a shock to everyone, but Amazon might not be doing quality control on every bit of stuff in its marketplace either. You can, I’m pretty sure, buy counterfeit Air Jordans on Amazon, but Amazon isn’t selling them. And if Amazon shut down a seller, that same seller would pop back up under a different name in less than an hour. That’s the nature of being a Web 2 marketplace, isn’t it?

I’m writing about this on this particular day because the judge in the case recently indicated that this isn’t a clear enough issue for him to award summary judgment in anyone’s favor; the facts are questionable enough that it’s a matter suitable for a jury. So maybe we’re going to trial. And I’m not really surprised, but I still sympathize with Apple in a way.

Do we really expect Apple to be policing every seller on iTunes to make sure they’ve secured the necessary rights? Or are we content in that crooks will get sued by the injured party? I think the latter

Written by Brian McBrearty