posted by Thom Holwerda on Tue 8th Dec 2009 19:19 UTC
IconAnd we have news of yet another massive copyright infringement lawsuit in the music industry. This one takes place in Canada, and the infringed party is placing a truly massive claim on the infringing party: 50 million USD, with the possibility of it exceeding 60 billion USD. Bad news? Well, no, not really - you really need to consider the infringing party in this one. This is irony not even the ancient Greeks could imagine.

The infringed party in this particular case consists of, among others, Chet Baker, a leading jazz musician in the 1950, who played various instruments and died in 1988. His legacy is maintained by his estate, which owns the copyright on 50 of his works. The infringing party has already admitted the infringing behaviour, meaning they own at least 50 million USD.

Now, here's the real shocker: the infringing party is none other than... The Canadian music industry: Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada - the four main members of the Canadian Recording Industry Association.

This might seem odd, so a little history regarding Canadian's recording industry is required. For a long time now, the Canadian recording industry employs a practice which the lawsuit calls "exploit now, pay later if at all". The recording industry uses material on compilation CDs ("Best of 2009" and so on) and live recordings, but doesn't obtain the necessary grants to do so from the rights holders. The industry creates, presses, and distributes these CDs, but they are technically not allowed to do so because the holders of the copyrighted works used for those CDs did not grant permissions.

Instead of seeking permission before making the CDs, the recording industry puts these songs on a pending list with songs with approval and payment pending. This practice started in the late 1980s, when Canadian copyright law changed. This list has grown exponentially since, now containing over 300000 songs - and for each of those songs, the industry has automatically admitted infringement (else they wouldn't be on the list). This list contains artists from all walks of life, from Beyonce to Bruce Springsteen.

So, why haven't the Canadian recording companies paid up? Why are they committing piracy on a massive scale? David Basskin, president and CEO of the Canadian Musical Reproduction Rights Agency, explains in his affidavit that "the record labels have devoted insufficient resources for identifying and paying the owners of musical works on the pending lists".

And here comes that sweet, sweet taste of irony, a taste sprinkled in fairy dust and brought to you by pretty pixies riding on pink unicorns: the recording industry successfully argued in Canada that pirates have to pay 20000 USD per infringement, which means that the potential liability exceeds 60 billion USD. "These numbers may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages," says Michael Geist, Internet Law columnist at The Star. He also holds the Canada Research Chair in Internet and E-commerce Law at the Faculty of Law of the University of Ottawa.

"After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid," Geist further details, "Indeed, they are also seeking punitive damages, arguing "the conduct of the defendant record companies is aggravated by their strict and unremitting approach to the enforcement of their copyright interests against consumers"."

This taste will surely warm and enrich my mouth for days to come. This is fighting fire with fire, this is using their own methods against them - this is the method with which we need to fight. I have the strong urge to bellow the Canadian national anthem, which for some inexplicable reason, I know by heart.

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