
Judge grants Happy Birthday lawyers $4.6M, citing “unusually positive results” - Tomte
http://arstechnica.com/tech-policy/2016/08/lawyers-who-nixed-happy-birthday-copyright-will-get-4-6m-in-fees/
======
bluejekyll
In other words, "Happy Birthday to, you!"

Gotta love it when a lawyer (judge) loves another lawyers (plaintiffs) work so
much, that they tell the losers that they sucked so badly that they are going
to get screwed even more.

What annoys me about this is that the extra payment does not appear to have
been decided based on losses, but more punitive because the song should
possibly never have been copyrighted (which I agree with).

Isn't it enough to win and get payment for the work? Do they need to be given
some windfall beyond standard judgement? I'm happy for the ruling, but it
doesn't necessarily seem like a fair judgement to say that they were just that
good.

~~~
cortesoft
I think you are misunderstanding.... the judge is NOT imposing a higher
judgement against the defendants.... this is just deciding that the lawyers
are deserving of a larger percentage of the already-agreed-upon settlement
amount. This is in no way punitive.

Basically, the judge is saying that based on the amount of work and skill the
lawyers used, they are deserving of a bigger slice of the existing pie... not
a whole new pie.

I am assuming the rest of the settlement is going to the class members... all
of the people who have had to pay fees for using happy birthday.

~~~
dctoedt
> _... the judge is NOT imposing a higher judgement against the defendants....
> this is just deciding that the lawyers are deserving of a larger percentage
> of the already-agreed-upon settlement amount._

That's not how it works under the statute. In this case the _amount_ of the
attorney-fee award was computed as one-third of the settlement amount (this is
the "lodestar" mentioned in the article), then the judge added a kicker for
exceptional results; that's the traditional way it's done in the U.S. on the
rare occasions when attorney fees are awarded [0]. But under 17 USC 505 [1],
the attorney-fee award would be _in addition to_ the settlement amount.

[0]
[http://www.americanbar.org/content/newsletter/publications/g...](http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/magratten_phillips_connolly_feldman_mamaysky.html)

[1]
[https://www.law.cornell.edu/uscode/text/17/505](https://www.law.cornell.edu/uscode/text/17/505),
explained at length in, e.g.,
[http://www.rbs2.com/caf.pdf](http://www.rbs2.com/caf.pdf)

------
6stringmerc
I've followed this case closely and those lawyers deserve to be rewarded for
pursuing such a public good. In a time and age where Copyright is ridiculously
abused, this is, to me, one of the best kind of battles. Music industry
lawyers are, in my perspective, some of the best at their profession - a
victory against them is a good indication that there are merits in exposing
fraud of this type.

Happy Birthday, Dimebag Darrell. He would've turned 50 today.

------
jedberg
As my lawyer friend once told me: "Class action lawsuits are the lawyers'
startup. You get one good one and you're set for life".

------
forgotpwtomain
> Five lawyers billed the "vast majority" of the hours, charging rates that
> varied between $395 per hour and $820 per hour. The most work was done by
> Randall Newman, who billed 2,193 hours at $640 per hour. King found the
> rates were all reasonable given "the cases cited, the National Law Journal
> survey, and our own experience."

Surely the contribution of these people to civilization is well correlated
with the economic benefits reaped. Which is encouraging because we want to
inspire future generations to such awesome achievements!

~~~
ekidd
> Surely the contribution of these people to civilization is well correlated
> with the economic benefits reaped.

I'm not sure whether you're being sarcastic or not.

But I actually do agree that the lawyers in this case have provided
significant economic benefit to the public. "Happy Birthday to You" is almost
universally known in the English speaking world, even by children, and it's
frequently performed in public. Up until now, restaurants and youth
organizations have have often discouraged their staff from singing this song,
and of course, people who did sing it publicly were at risk of getting letters
from lawyers.

Now several hundred million people can just sing the song without worrying
about copyright issues. I have no problem with the lawyers getting paid well.

~~~
forgotpwtomain
It was a rather tongue in cheek comment. The assessment of value changes
depending on where you begin your inquiry; if you look only at the immediate
situation than effectively yes, these lawyers have provided a tangible public
service.

On the other-hand the entire branch of law in this case is providing no-
benefit to civilization and it's only acts as a funnel for the transfer of
wealth between entities (lawyers facilitate this transfer and benefit from
it's continued practice which is _definitionally_ parasitic since nothing of
value is being created in the process).

~~~
rayiner
Copyright creates enormous wealth. You can't have markets if you can't have
transactions, and you can't have transactions in software if you don't have
copyright protection. You're limited to this impoverished world where the
software creator has to lock it behind a services API in order to monetize it.
The world benefits enormously from just being able to sell software, movies,
etc. as you would a physical product.

A world without copyright is not one in which studios still make the AAA
movies people want and just distribute them into the public domain. It's one
where you can only watch movies in theaters, or stream them onto locked down
devices like Apple TVs instead of general purpose computers.

~~~
forgotpwtomain
> Copyright creates enormous wealth. You can't have markets if you can't have
> transactions, and you can't have transactions in software if you don't have
> copyright protection. You're limited to this impoverished world where the
> software creator has to lock it behind a services API in order to monetize
> it. The world benefits enormously from just being able to sell software,
> movies, etc. as you would a physical product.

It's not a black or white thing, although I guess that's what supporters of
endless copyright extensions would like to convince you to think. I concur
with the conception of copyright which dictates that it should protect or make
worthwhile the upfront risk and investment to produce something of value.

Would having a much more limited span or at least capped to the life-time of
the creator versus 120 year copyright have prevented happy-birthday or mickey-
mouse from being created? I think the answer is unequivocally no.

Neither is it true that you can't have transactions in software without
copyright protection (Redhat, Mozilla is proof enough of this). Meanwhile
larger companies with all the benefits of copy-right protection are making
most of their money from Cloud Apps and Web services anyways (Facebook,
Google) even Microsoft the traditional major player in the 'for-sale' software
business is moving away from it towards cloud offerings.

> A world without copyright is not one in which studios still make the AAA
> movies people want and just distribute them into the public domain.

What is the term ( in length of years) across which Studios calculate the
gross revenue vs. expenses from their production? I don't have a graph in
front of me but surely they calculate that revenue must top expenses within
the release year to justify expenses and it's a highly diminishing slope after
that. Netflix is already effectively locked down (and clearly the future), - I
don't see how copyright is preserving any kind of liberties here.

~~~
rayiner
You said "the entire branch of law in this case is providing no-benefit to
civilization."

~~~
forgotpwtomain
I think the net-effect given the current state of law is probably a negative,
yes.

~~~
SilasX
Then you should probably stop arguing against the entire concept of copyright
law, as that gives the wrong impression.

------
Hondor
Something people seem to have missed. The lawyers did the case on a
contingency fee basis. That means if they lost, they would get nothing. They
took a risk so the judge is rewarding them for taking that risk.

------
jsprogrammer
How can a settlement place something in to the public domain if it was already
there?

If you are arguing that Warner has no rights, then Warner has no ability to
make the work public domain.

Does anyone have a link to the final settlement document?

~~~
kemayo
It's because a settlement is a compromise between the parties in the suit, not
an official legal finding. Thus, legally speaking, no position is taken on
whether or not Happy Birthday technically was in the public domain already.

Presumably Warner agreed to this because it was (a) cheaper than fighting the
full suit, and (b) avoided setting that legal precedent that might have hurt
their ownership of other songs.

Here's the settlement document:
[https://happybirthdaylawsuit.com/Portals/0/Documents/OFJ.pdf](https://happybirthdaylawsuit.com/Portals/0/Documents/OFJ.pdf)

~~~
jsprogrammer
Thanks for the link, the document says that the Court declared the song to be
in the public domain. The ars article is a bit misleading then as it seems to
imply that Warner somehow placed it into the public domain.

Also note that the Court only placed it in the public domain as of the final
settlement date, rather than retroactively back to its apparently false
registration.

~~~
kemayo
Yeah, the way it works is that the court implements and enforces the agreement
between the parties, using those fun legal powers -- that's why the judge had
to approve the agreement. So a more accurate statement would have been "Warner
agreed to have it placed in the public domain".

Again, "apparently false registration" is something that the agreement
carefully avoids making a determination on. There's a bunch of "this is not an
admission of guilt" language in there, which is how settlements normally work.

------
white-flame
I've always drawn systemic problems of our social progress back to incentives,
and a major complaint I often bring up is "Who is incentivized to fight for
the public domain? For common sense?" There are strong financial incentives
the other way, to legislate lock-in and go against what's in the best interest
of the nation & world.

It's great to see that there are ways to incentivize fighting for the public
domain.

------
boznz
"$640 an hour"... sigh I earn that a week :-(

~~~
primitivesuave
12.7% of the world earns around that much in a year.
([http://www.worldbank.org/en/topic/poverty/overview](http://www.worldbank.org/en/topic/poverty/overview))

------
timwaagh
Well, i guess i should have become a lawyer then. I don't think awarding
millions to a single person is ever reasonable. It might be the logical thing
to do if scarcity is very high, but 'reasonable'? I feel this is the judge
rewarding his own tribe.

~~~
djrogers
> I don't think awarding millions to a single person is ever reasonable.

That's not what happened here. A law firm was awarded this portion of the
settlement for several years and thousands of hours of work. The judge took
their billing and added 20% because he thought they did exceptional work that
deserved an exceptional reward (i.e. a 20% bonus - kinda like a courtroom
MBO).

~~~
Illniyar
Except that the minimum fee is 350$ an hour. If they worked for the standard
180 hours a month for 12 months they'll get something like a 700,000$
salary.many of the lawyers.probabaly did take home several million dollars in
fees.

~~~
eridius
When a lawyer bills hundreds of dollars per hour, doesn't that actually
include the assistance of paralegals and everything else that goes into
supporting a lawyer? It's not like that's the lawyer's take-home pay.

~~~
ghaff
Right. And, in fact, it's specifically the lawyer's "billable hours" which are
< the number of hours worked. (i.e. it doesn't include continuing education
requirements, administrivia, etc.)

The numbers cited are respectable lawyer pay but they're nothing
extraordinary. When I worked on an expert witness report a number of years
back, our hourly fee was in that vicinity.

------
jondubois
Being a lawyer is like being a hacker.

Some hackers create problems and other hackers (aka security consultants) sell
the solutions.

When it comes to lawyers; some laywers create problems by launching legal
action and then other lawyers sell the solution by offering defence.

One set of lawyers gets hired by a company to sue another company which, in
response, is forced to hire a different, equally large and equally expensive
set of lawyers to defend itself.

Then you have a judge who sits in the middle and who has a tendency to be
sympathetic towards the lawyers (judges are often former lawyers themselves).

It's not surprising that lawyers get such massive payouts.

I think this case should have been thrown out of court because it is idiotic.
The judge just saw an opportunity to allow his lawyer friends make some money
- Maybe they will return the favor some day.

The worst part is that the judge and the lawyers probably feel all warm and
fuzzy about what they did... The lawyers probably think of themselves as being
"The heroes who moved the happy birthday song into the public domain" \-
Whereas in reality, they are "Hackers who manipulated the legal system to make
money for themselves".

Regardless of the outcome of this case, people would still have continued to
sing happy birthday - Everybody in the world knows this. The plaintiff didn't
have much of a case.

~~~
williamscales
> Regardless of the outcome of this case, people would still have continued to
> sing happy birthday

This is true. Yet, if the case had not happened, Warner would be able to block
the usage of Happy Birthday in any movie it wanted to.

