It’s no secret that all forms of entertainment have embraced and migrated to the web. Why? The internet allows you to select what, when, where, and how the new media is delivered. The present technology provides a vast new world of opportunities to those engaged in the entertainment industry, including artists, musicians, producers, actors, writers, production companies, the film industry, radio and television stations, record distributors, game designers, and many more.
Along with this freedom of choice comes several problems that we have not had to address in the past.
It was not long ago that Napster offered you the ability to download mp3 music files without having to purchase the CD. And there were those who thought it was legal to engage in cybersquatting by buying domain names of famous companies, like Panasonic, or individuals, like Madonna, and then trying to gouge them by offering to sell those very names back at a greatly inflated price.
Even today, it is not uncommon for some to illegally download mp4 files containing feature films that have not yet been released in theaters, and/or participate in identity theft, cyberbullying, pirating, copyright and trademark infringement, email scams, spam, and much more. In fact, the internet, in many respects, is still much like the wild west.
On the one hand, let’s suppose you had good intentions and didn’t realize it was illegal to click that hyperlink which allowed you to receive an mp3 containing songs from a copyrighted CD, or an mp4, mpeg, mp2, divx, avi or mov file containing a film or television show from a copyrighted DVD or Blu-ray disc. When you receive that letter from a cable company, lawyer, law firm, the RIAA, or MPAA, threatening that you are, or about to become, a defendant in a mass copyright infringement law suit, what will you do?
Record and film companies continue the practice of filing mass copyright infringement lawsuits lumping thousands of defendants together, namimg each defendant "John Doe" or "Jane Doe" or "Does 1-2500." Courts issue subpoenas to these defendants' cable or internet provider to give up their identity. In turn, the cable or other internet provider sends each potentital defendant a letter stating that their IP address has been identified in the downloading of a controlled work (film or mp3) threatening to reveal their identity unless the potential defendant files a motion to quash in the issuing court.
Often, the download contains pornographic material, and the potential defendant would be embarrased if his or her identity is revealed.
The stakes are high for anyone identified in these slipshod cases. The strategy appears to be threaten a judgment of up to $150,000 per downloaded movie or tune (the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement) in order to pressure the alleged infringers to settle quickly.
Notwithstanding, an adverse judgment could be for incredible damages. In the retrial of RIAA v. Thomas, the Defendant was found guilty of willful infringement of copyright in the amount of $1.92M by a jury in a Minnesota federal court.
If you are faced with the foregoing, it is important to get legal advice to help you decide whether to fight or settle. We recommend that you do not try to do this yourself, because at the very least, if you want to settle as a matter of convenience, you should do so anonymously. If you represent yourself, this would be impossible. It is imperative that you select an attorney who not only practices entertainment law, but internet and technology law (“cyberlaw”), intellectual property law, and litigation.
On the other hand, let’s review a scenario where we are not dealing with pending litigation and/or damage control, but building a new entertainment entity like an internet record distribution company, recording studio, or something along those lines. Before the internet, many felt it was not necessary to perform a trademark or domain name search to clear the name for the entity. Today, it is absolutely essential to the survival of any business that its brand be available as a trademark and domain name. That’s just the tip of the iceberg.
Cyber entertainment attorneys are cut from different molds. Some engage in purely transactional matters like drafting contracts, reviewing and negotiating record, tv, mp3, CD, music, video, film, DVD, movie, license, assignment, and other such deals. Others may practice litigation, where they either represent a plaintiff or defendant in a pending or filed lawsuit concerning trademark, copyright and/or meta tag infringement, domain name disputes and/or cybersquatting, .Then there are those who do both, and more…
Elliot Zimmerman has practiced cyberentertainment law and litigation since 1981. In addition, he is also a recording artist and computer programmer. As such, he is uniquely positioned to know the intricate nature of your entertainment or cyber business. View Mr. Zimmerman's Curriculum Vitae here