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It is not a stretch to think that most people would believe that in order to license a product, they would have to create it; if the product is allegedly counterfeit, i.e. not created by the originator of the item that was counterfeited, then the ownership of the alleged counterfeit item is someone else, whether the item is legitimately owned by them or not...

That is not necessarily how IP licensing works.

Suppose I own the IP rights to a widget (could be patented, could have copyrightable aspects, could be trademark). I discover that you are making widgets that infringe my IP rights. Let's call them "counterfeit" even though that might not be the precisely correct term. I sue you.

As that lawsuit progresses, I might insist that your widgets be destroyed, and if you want to sell these widgets, you have to buy them from me. That's one possible outcome.

But suppose you are really good at making these widgets, and you have a lot more manufacturing capacity than I have, and you have a much larger customer base. To resolve the lawsuit, I might well decide that I will be better off if we make an arrangement whereby you make and sell the widgets and pay me a fee for the privilege. So we draw up an agreement, you pay me the royalty on all the ones you made before and sold, and you agree to pay me for all the ones you make and sell in the future. You're happy because you don't have to destroy your widgets, and I'm happy because I'm making more money than if I just made them myself. And we have just legitimized all of the "counterfeit" widgets.

There is nothing wrong with this arrangement. It happens every day. It is such an ordinary type of arrangement that it's fair to say that something like 75% of all patent infringement suits that settle include this type of arrangement.

The fact that you are ignorant of how this works does not mean there is one untoward thing about it, and casting aspersions on it is unfair and unreasonable.

i think what he was getting is...
were the license agreements in place giving permission for leasing the end product?

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Paradigm Karaoke, The New Standard.......Shift Happens

One's opinion, not fact, of me being "ignorant" (I am showing some benefit of the doubt that you would have chosen a less disparaging characterization, like "less knowledgeable", had you considered that many view the term "ignorant" to be negative verbiage--if, for no other reason, one of its definitions being "discourteous or rude") does not justify a reply that is "casting aspersions" on an attempt to provide food for thought in a specific area that is blatantly obvious to have an abundance of gray area, despite anyone's attempt to believe or convince otherwise.

My emphasis of discussion is always intended to be from a pro-consumer position. I recognize that positions of bias can interpret such information as an appearance of anti-business on rare occasion, but it should never be concluded that way, since there is nothing to consume if there is no businesses...

If by "leasing" you are referring to the GEM series license agreement...

The product we are using for that license is product that was legally sold once (from FSC Mediaplas to us), with royalties paid in full, as MCPS confirmed. The First Sale Doctrine prevents the copyright owner from having any say over further transfers of those physical copies, whether it is by outright sale, leasing, lending, renting, or whatever you might want to call it.

In short, we don't need a license from anyone to implement the GEM series licensing program. Well, I guess we need a business license from Meckenburg County, North Carolina. But not from any publisher.

The term "ignorant" carries only the implication that you lack knowledge on the subject. Your suggestion that what I have described is in any way untoward is, in fact, ignorant, because it is not only a common method of resolving disputes over intellectual property, but also the preferred method used by parties in most cases. These types of agreements are enforced and sometimes facilitated by the courts. Moreover, it is so commonly accepted that there is not much gray area at all, and certainly not an abundance.

On the other hand, your reaction to being correctly called "ignorant" is full of chutzpah, given that my original remarks to you on this subject were precipitated by your characterization of this arrangement as two companies "colluding to make money," a phrase that carries far more serious and offensive connotations than "ignorant."



I did not interpret your position as being "anti-business." I interpreted it as being "anti-common sense." As for "pro-consumer," it seems to me that an arrangement that gives someone the use of a catalog that is worth, conservatively estimating, something near $50,000 for a price that's not even 1% of that amount per month, is decidedly "pro-consumer."

Just as I displayed an aversion to the term "ignorant", I believe I can recognize the aversion to the term "collusion", especially since whether it is accurate or not would necessitate bearing out. One thing is certain: All numbers aside, if a company has a virtually ZERO percent investment in the creation of counterfeit material, the return on the non-investment is infinity, which is a position that could be difficult to justify to most "common sense" folks...

It is just difficult to imagine why, if there is such an iron-clad position to be had, the recording and publishing industries, which is an exponentially larger industry with at least exponentially larger losses (and whose existence is virtually 100% of the backdrop for the industry for which this forum exists), hasn't done more to recoup their losses in this manner. All I have read on the subject generally resulted in negative outcomes, and forced more creative avenues with the motivation of, at the least, keeping with the times...

What if.... means that nothing following those two words is true... it's just what you wished had happened.

Interesting comparison here though:
When you get a monetary settlement with an alleged pirate, you don't have a problem counting it as "a win" for you, but when the shoe is on the other foot, opposing counsel is painted as "never won a case he's gone after."

You're not bitter or anything are you?

Your "help licensing fees" don't mean anything... that is a separate and apart contractual arrangement that has NO bearing on your (monetary) settlement on the lawsuit. And because you are even commenting on it at all is an acknowledgment that it is in fact, not part of the settlement of the copyright infringement lawsuit.

And I can confirm that I've paid my share to the bank every month on my house too, but that also has nothing to do with EMI or anything else..... (see how that works?)

I didn't see any evidence -- even in a response from you filed with the court to support this cow poop you're attempting to spread.

"... at the time of their original production..." but is that in the U.S. or the U.K?

No control? Why was the first rejected application to MCPS signed by "Kurt Slep - consultant?" "OUR Uk branch" is not a free-standing company. But now you want to change the meaning of this to fit your agenda? Nope, sorry.

And?.... keep going..... don't forge the part about the letter from the MCPS attorney that explained this action went far beyond the allowable scope of the license? And what only appeared as a loophole was closed down shortly after.... The discs weren't even pressed in the U.K., they were pressed in the Czech Republic by Fermata... So I doubt the discs/masters even saw the light of day in England but that's just speculation... And it's pretty interesting that even an accomplished internet snoop like me can't seem to find anything on this "FSC Mediaplace" that you claim was in busines for 6 years....

"the case settled" is pretty ambiguous... how about "we agreed to settle the case" because EMI was ready to go to trial and you certainly wouldn't have wanted anyone like a judge or jury to make any determination on the outcome.

Which part is a lie? That you ended up paying a settlement? You can neither confirm or deny that remember?

A lie would be if I said that your "settlement included an agreement for you to sleep with stuffed toy for 6 years." You could certainly deny that right? It seems as though what you can neither confirm or deny has struck a little close to home.

It amazes me how you can accuse me of lying when the Declaration of Simon Bourn (Senior Counsel at MCPS) made it clear Slep-Tone had no right to do what they did.

If the MCPS license actually permitted what you were doing, why did you settle? If you were correct, then Slep-Tone/PEP would have been the "prevailing partiy" and entitled to recover fees and costs and that certainly didn't happen...

Actions speak far louder than words and I don't just "read accusations" to acquaint myself with the facts, nor do I take your word as being 100% truth either.

But, I'm the "liar?" Really?

I think you are mischaracterizing that declaration. Slep-Tone had no agreement with MCPS, so of course it had no rights under the agreement between MCPS and FSC Mediaplas. FSC made an outright sale of these discs to Slep-Tone. That sale was permitted under the terms of the agreement.



There is no automatic recovery of attorney fees, even if you are the prevailing party. By settling the lawsuit with them, we got to avoid the expense of a trial (and trials are uncertain, regardless of whether you think you'll win or not) AND they agreed to join our HELP publishers' pool. That's a good deal.



What makes you a liar is that you are asserting something as fact that you cannot possibly know to be true. No one who is in a position to know is allowed to tell you anything. You clearly don't care whether you're telling the truth or not.

And as you said: This is not court." But I believe that we can ascertain the outcome of this entire settlement with one of your favorite phrases: "a preponderance of the evidence."

And simply because that overwhelming evidence obviously points to a monetary settlement doesn't make me a liar at all. I understand that in order for you to maintain even a shred of credibility even though you cannot discuss the details of the settlement, your excuses for settling at all when you claim that everything you did was "legal" simply doesn't make sense.

Like finding a turtle stranded on the top of a 4-foot fence post, one can calculate how it got there (circumstantial evidence.) While you may not know the actual facts on who or how the turtle was placed on the fence post, you do know for a fact that the turtle didn't get there on its own. Even if the turtle is unable to discuss any details about how it got there.

You of all people should know the definition of a lie is knowing the truth – and purposely not telling the truth when you are free to do so.

While you're simply not free to discuss the "terms of the settlement" – you're always free to tell the truth about how that settlement came to exist. It's about that part of the story that I believe you're not being entirely truthful.

The problem is that it doesn't point to a monetary settlement. You're suffering from confirmation bias. You believe we paid a monetary settlement, so you pick "evidence" that supports your assertion, ignoring everything that doesn't.

The lie you're telling isn't the assertion that we paid a monetary settlement. You believe that, and there is nothing I can legally do or say that will dissuade you from it. Your mind is made up, so saying that we did isn't technically a lie.

The lie is that your assertion is based on actual evidence, when it's not. That's an objective fact.

You are making numerous unwarranted assumptions about our motivations and about those of the plaintiffs. For example, you see that the trial date was approaching when we settled, and you assume, entirely without evidence, that we were the ones who caved. Is it not at least as likely that the plaintiffs, seeing that they were not likely to win, decided to cave instead? I'll point out, by the way, that the plaintiffs were demanding damages into the billions of dollars (based on their attorney's faulty understanding of how statutory damages work). I think you know that nobody at Slep-Tone had billions of dollars or even millions of dollars available to meet the plaintiffs' demands. Can your brain possibly wrap itself around the idea that we couldn't possibly have just "decided to settle" on their terms?

You've claimed that the length of time that case went on is evidence that we did something wrong. But if you've read the docket as you claimed, you know that discovery in the case was stayed for more than a year while the plaintiffs figured out whether they actually owned the works they were suing over. (Hint: In most cases, they couldn't show ownership at all.) Imagine what your position would be if we sued a KJ for infringing intellectual property we didn't own. You would fill up the internet with scathing commentary about how evil we are.

Look, I get that your brain is incapable of recognizing and understanding nuances. It's one of the reasons why you make a terrible legal "consultant." But you would benefit from taking a step back and at least trying to have a little objectivity.

Either it is, or it isn't. Make up your mind. But if "saying so isn't technically a lie," then logic would dictate that the only other choice you have is the truth and I'll take that as an admission counsel, thanks.
I would be very interested in knowing exactly what "actual evidence" you think has been presented.
That would be called "a voluntary dismissal." Something that I believe you're very familiar with. I don't think they would be very interested in sticking around for your sales job on why they should participate in your help licensing program and I don't believe that any of my "numerous assumptions" are unwarranted. Not to settle with them would have put your entire business at risk.
You mean Kurt's insurance carrier was not ready to be on the spot with a check again? You've done the same thing in your lawsuits – ask for hundreds of thousands of dollars for statutory trademark infringement damages when you know full well that a defendant is not able to pay it. Settlements are negotiated and usually structured in a form that a defendant can pay. As a matter of fact, I'm sure that in many of your settlements, you've even structured it to make it a convenient payment plan with the sale of the gems series, or even a help license. so there's no need for you to hold out the tin cup again like you're some kind of destitute victim.

more word salad. And you claim that everything you did with licensing in the UK was on the up and up, fair and square, and legal. But in all of the time it took for this case to progress, you were unable to prove to a court – or even present to the court – that the lawsuit against you was without merit even with MCPS claiming that what happened with licensing was legal?
H-O-G-W-A-S-H.
I believe it is spending the money and taking the time to do the necessary research – reading through all of the documents and the exhibits – including yours - that actually makes me more objective than the average KJ in this business. And that's one of the main reasons why I would not agree with you that my assumptions are unwarranted, I do the homework that others are unwilling to do. You would have to admit that if you were as legal as you claim you were, there wouldn't be much for me to say and that lawsuit would've not lasted very long at all. I would have the hard evidence right in front of me from the court system that you were in fact correct and I would have my crow with just a little salt and pepper.

Instead, all I get from you is more of the first course… word salad.

Here's a good example of your inability to understand nuances of language.

If you believe something is true, then saying it isn't a lie even if it's false. A statement can be false and still not be a lie.



I don't think any "actual evidence" has been presented. I think you've looked at a handful of public documents (and none of the non-public ones) and made a bunch of assumptions that don't track.



At that stage of the case, they could not voluntarily dismiss the case without our agreement or the judge's. I am very confident, having been in the room with him on numerous occasions, that the judge would not simply have let them walk away voluntarily.



So, which is it? We fought against them for two years because our business wasn't at risk, or we settled with them because it was at risk?

All litigation is risky. All trials are risky.



Our insurance carrier covered the cost of our defense. It is unclear whether they would have been on the hook if there had been a judgment--but, of course, we'll never know.

By the way, we don't "ask for hundreds of thousands of dollars for statutory trademark damages." We recite what the limits of the law are, but we generally ask for around $50,000 per system, which is the approximate value of what most defendants steal from us.



All of this demonstrates that you don't understand how cases get resolved prior to trial.

There are two ways for cases to be resolved in favor of the defendant prior to trial. One, the complaint can be dismissed because the allegations, if assumed to be true, don't add up to a valid claim. Two, after discovery, if there are no genuine disputes of material fact, the judge can grant summary judgment to one side or the other.

The complaint itself, if you assumed the allegations to be true, did add up to valid claims, so there was no dismissal. (That says nothing about the actual merits of the claims, just that if you read their side only and assumed they were telling the truth, then the case can proceed.) We didn't even ask for a dismissal, because it would have been pointless.

So that left summary judgment. Technically you can ask for summary judgment at any time, but if you do it before discovery is completed, the judge will in 99.99% of cases allow the plaintiff to complete discovery, because not allowing the plaintiff to complete discovery is an easy reason to reverse on appeal. Because the plaintiffs dragged their feet for years--literally years--in discovery, we never even got to the point where we could even ask for summary judgment. By the time discovery was completed, they were already asking for mediation, which the judge ordered to take place before any summary judgment motion.



You can read all you like, but you understand almost nothing. I'm done trying to educate you.

Wait...I have a question. If everything you did with EMI was perfectly legal AND you had proof of such, why on earth would you choose to settle rather than filing a Motion for Summary Judgment, which you most certainly would have won based on the law....RIGHT????

Something is a little stinky here, counselor.

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Birdofsong

So, let's say we do that, and we win.

What do you think happens the next time we go to those plaintiffs and ask for licenses for new production?

Okay, I'll play along...didn't you also say that they agreed that you had not infringed, so why on earth wouldn't they have been willing to just sign a stip and order and be done with it? I may not be an attorney, but I've been filing dismissal orders for 25 years and I have yet to see a judge reject one.

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Birdofsong

I said that MCPS agreed with our position, not the plaintiffs. The plaintiffs disagreed. (When the case was settled, there was a stipulated dismissal.)



If they're signed by both parties, the judge can't reject the dismissal. But if not all parties agree, the judge is free to refuse a voluntary dismissal.

Yep. Here's and example; "We're Getting The Band Back Together."

Jury is still out on that one.

You weren't so unclear about it just a few posts back:
Hmmm... first you were so sure about it... and now you "don't think?"

So you are asserting that if they wanted to dismiss you after 2 years in court, you'd say; "No! Keep suing us!" Or a Judge saying; "Nope. I know you both want out of the suit, but I've got more popcorn and we're going forward."

See how childishly stupid that sounds? Because that's all you're offering.

It's both: You fought with them for 2 years because your business was at risk and you settled with them because the risk factor became too great.

And here's a new one for you: You asked for the help license stuff to help fund your on-going settlement payments because if you're being this defensive, the settlement must have been a whopper.
I think I understand far more than you'd like.

So you're basically saying that you settled with them for fear of retribution, even though your position is that you were legally correct? So really, other publishers could sue you just to produce a settlement, because you wouldn't ever fight them, even if youhad a correct legal position, because they may decide not to work with you in the future? If you were so afraid of retribution, why would you have fought EMI for two years?

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Birdofsong