Ex-rocker sues Microsoft
by James Ransom-Wiley 
{ Oct 31st 2005 at 4:30PM }
It's taken ex-Ink & Dagger drummer, Ryan
McLaughlin, nearly four years to get his lawsuit in order. McLaughlin has accused Microsoft of using three of his
former band's songs in Amped (released Nov. 19, 2001) without a proper licensing agreement; although, he
didn't copyright his music until this past June. "[I'm] outraged that my artistic integrity has been so brazenly
violated."
Something just doesn't add up…
Reader Comments (Page 1 of 1)
startled @ Dec 18th 2005 10:00PM
Sounds like someone needs to read up on some copyright basics. Here's a good start:
http://www.templetons.com/brad/copymyths.html
1) "If it doesn't have a copyright notice, it's not copyrighted."
This was true in the past, but today almost all major nations follow the Berne copyright convention. For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people's works is that they are copyrighted and may not be copied unless you know otherwise. There are some old works that lost protection without notice, but frankly you should not risk it unless you know for sure.
So: he "copyrighted" his music the instant he authored it. The original article likely confused copyrighting something with registering a copyright, which is useful when you get into litigation, but not necessary for a copyright. Or, as the U.S. copyright office puts it:
http://www.copyright.gov/register/
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.
retro @ Dec 18th 2005 10:00PM
Even if the music wasn't registered, it doesnt give microsoft (or anyone) to use it. The least they could of done was got permission.
Oshi @ Dec 18th 2005 10:00PM
ink and dagger was awesome. screw you microshaft!
Jehannum @ Dec 18th 2005 10:00PM
The only thing that doesn't add up here is why _Microsoft_ didn't figure this out four years ago and simply settle it. Precedent of law is clearly in the plaintiff's favor.
It's going to cost a crapload more to go to court over a simple case of copyright infringement than it would to settle.
jordan @ Dec 18th 2005 10:00PM
any Intellectual Property is "copyrighted" and legally owned by its creator as soon as it is conceived and put into some physical form, be it notes on a piece of paper, or an actual recording
going thru the paperwork for it is just to ensure that its acknowledged and dated
Chris Clark @ Dec 18th 2005 10:00PM
What precedent of law is in the plantiff's favor? If he did not have the music copyrighted at the time then it was still fair game for Microsoft to use it without the consent or liscensing from the band.
Tough cookies
MosquitoControl @ Dec 18th 2005 10:00PM
MSFT most likely did get permission, from the record label, which is now defunct.
booger @ Dec 18th 2005 10:00PM
He was obviously being pressured by Sony to bring this lawsuit.
Brian @ Dec 18th 2005 10:00PM
"What precedent of law is in the plantiff's favor? If he did not have the music copyrighted at the time then it was still fair game for Microsoft to use it without the consent or liscensing from the band."
Wrong, an artist automatically owns the copyright. Startled up in comment #1 has it exactly right.
LaughingTarget @ Dec 18th 2005 10:00PM
http://www.gigalaw.com/articles/2002-all/baroni-2002-12-all.html
Copyright infringement has a three year statute of limitations. This won't even make it to trial.
filmjax @ Dec 18th 2005 10:00PM
I find it hard to believe that Microsoft would have just decided to swipe something without crossing all the T's and dotting all the I's.
GameOver @ Dec 18th 2005 10:00PM
Save the anti-Microsoft banter folks. Why would Microsoft intentionally swipe the music of some indie no-name band when they could easily afford the nickel it would have cost to license it? More likely this was a simple mistake or they did license it but the label never bothered to inform the band, which is not uncommon.
Kuroshi @ Dec 18th 2005 10:00PM
wrong #8 the artist dosn't automatically own the copyright. Many of the copyrights are owned by the label. Not all artist even write thier own songs or front the money for said material. Why just the drummer has come forward? His time has past and now he wants to crawl out of his hole and collect some payola. I'm also very supprised at a bunch of bloggers who probably download copyrighted material on a daily basis now being offended by claimed copyright violations.
AbleJames @ Dec 18th 2005 10:00PM
Boy, the first post was a great copyright law refresher, and you still get 'wut, it wasn't registered??' trolls.
Joystiq posters, this is what happens when you post false facts.
Copyright is immediate from the point of creation. Registration isn't even a formality--copyright exists without it, and a trial can be won without it. It's something one does to get formal declaration of copyright before, as #1 said, one takes legal action and wants the best case possible.
Sean @ Dec 18th 2005 10:00PM
#9: the infringement is ongoing. Amped is still available in stores.
ZeroCorpse @ Dec 18th 2005 10:00PM
Could it be, perhaps, that the tunes in question sound "kinda like" his music, but it's really not?
There are only so many notes. I'm a musician, and even I have heard stuff that sounds similar to my work. It happens. It doesn't necessarily mean that there was copyright infringment or malice involved.
LaughingTarget @ Dec 18th 2005 10:00PM
14 -
Very true, but it is all dependant on WHEN those stores bought those copies. If it has been less than three years since Microsoft stamped its last disk and shipped it out, then it is within the timeframe.
However, if all those disks on shelves were purchased by the retailer (Amped sold by Wal-Mart is not an Amped sold by Microsoft, the sale was already completed) before 10/31/02, then this individual has no case as the infringement is no longer considered on-going.
Obviously, though, there isn't enough information on this case to make any reasonable predictions.
ali @ Dec 18th 2005 10:00PM
what a damn sissy.
ChronoZaga @ Dec 18th 2005 10:00PM
On the first day it was fortold that creation went the way the stories told.
On the second day it was fortold that the fires of hell were ignited.
On the third day it was fortold that the angels would sing their songs.
On the forth dayit was fortold that the demons would be set freeeeeeeeeeeeeeeeeeeeeeeee!
(Or something like that)
ill trooper @ Dec 18th 2005 10:00PM
I hope the guy wins; being a musician is a hard life unless you happen to be one of the .2 percent that make money for even a few short years.
I disagree with the 'statute of limitations' assessment: This is something he has been trying to address for years and Microsoft waiting until now does not mean it went on for three years without anyone noticing or claiming anything was afoul.
And I simply shake my head in wonder as a few people here say 'tough cookies' or the like: WHY would you be against some guy getting a fair amount of money for something that was never properly paid for by one of the largest money-making companies ever? Who is even gonna notice 3-400,000 missing from Microsoft? I mean they just dropped $358 million on malaria research, certainly a more noble cause, but really: Money is oozing out of that place!
san @ Dec 18th 2005 10:00PM
"Copyright infringement has a three year statute of limitations."
The statute will toll from the date of last infringement: the last time Microsoft produced or sold a new copy of Amped.
hydrogen_wv @ Dec 18th 2005 10:00PM
I remember a song by Atom and his PAckage thatm entions this band although I've never listened to them before.
More than likely he's just trying to pocket some cash and isn't doing it for the moral reasons... A half million may be more than this guy has ever seen in his life.
Microsoft should just settle... MS sound like immoral wankers due to this, and the ink&dagger guy has a point.
josh @ Dec 18th 2005 10:00PM
(I am a unrelated record label owner.) From what I understand, Ink & Dagger's label had (or at least acted as if they had) publishing rights to the songs that were used in Amped. I doubt there is a case here, and if there is, it would most likely be against the label... which is out of business. MS, I'm sure, made the former label sign an idemnity clause stating that the label attested that it owned the rights to the music, and also would take all responsibility for any copyright issues... Not that this would get the case thrown out, but it would most likely show that MS thought the songs were included in good faith. I'd be suprised if this guy made back his lawyer fees.