Karaoke Forums

This filed just 5 days ago in New York:

Case 1:12-cv-00834-UA Document 1 Filed 02/02/12

This suit is a request for a "declaratory judgment" against SC who included this karaoke company in a mass-filing in the state of New York last year.

While this document states in paragraph 16:


(Note: If the court ordered it - then it wasn't really "voluntary" was it?)

The karaoke company is concerned that SC will simply file against them again. Therefore, this suit should (notice I said "should" and not "will") answer the question that we all have been waiting for regarding copying their trademark onto your computer for playback. (See paragraph #20 of the complaint)




I have the PDF file of the filed complaint for those that wish to view it --- simply send me a PM and I will give you a link to it.

Wow!
A case that actually seeks to answer the question of "mediashift" without the end goal of a settlement?
I wonder what gems they'll find in "discovery"?

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KNOW THYSELF

Amazing what people assume when they don't see the apostrophe. The case was voluntarily dismissed and the judge made it without prejudice.

Since I don't know who was the Complainant, though in this case it doesn't matter as the parties involved agreed to the dismissal, it doesn't settle any questions.

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You can be strange but not a stranger

"The crux of the bisciut is the apostrophe."

In this case you seem to have missed the apostrophe yourself when you assumed the case mentioned here had been dismissed. There hasn't even been a judge assigned yet who could dismiss it.

Here's a link to help you find the right case:

http://www.rfcexpress.com/lawsuits/trad ... c/summary/

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KNOW THYSELF

Oh, this could get VERY interesting...especially in regard to SC's future ability to generate an income in the manner that it does now.

Let's see what happens.....

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"No Contests, No Divas, Just A Good Time!"

" Disc based and loving it..."

I must admit I agree with JoeC this WILL get very interesting ...OK ladies and gentlemen make sure the safety bar is clicked down in place and keep your arms and legs inside the ride at all times.......

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"Integrity is choosing your thoughts, words and actions based on your principles and values rather than for your personal gain."
Unknown
"if a man has integrity, nothing else matters, If a man has no integrity, nothing else matters."
Lee McGuffey

You can expect to see a fairly hard-fought battle. Especially if sound choice loses the first round. In that case, you can pretty much guarantee that there will be an appeal. And if it goes to an appellate court, and they were to lose again, there's a very high probability that it will become a precedent and it would be game over – permanently.

And vice versa.

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You can be strange but not a stranger

Not necessarily, but nice try.

The plaintiff is looking for declaratory judgement so as not to be sued by SC again. Having not looked at the case, I can't say for sure, but it sounds to me like the plaintiff was named in a suit along with any number of other people and shouldn't have been. The judges "order" is to tell SC that if they will voluntarily withdraw he will dismiss it without prejudice which means that they could refile at a later time. If SC were to not voluntarily withdraw the case, then the judge could find for the defendant in which case he could ask the court to make SC pay all his legal fees.

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They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

This part is almost right. The plaintiff is not trying not to be sued; instead, it wants to have the suit now, rather than when SC decides to bring it again.



This is where you ran off the rails. In the prior suit, the law firm decided that it needed to withdraw from the case, as sometimes happens. Meanwhile, the time limit on service of the complaint and summons on the defendants ran, apparently without service, and the court ordered SC to provide proof of timely service or ask for more time, or he would dismiss the case without prejudice. (I don't know whether the lack of service and the withdrawal were related, but it would not surprise me.) The replacement attorney determined that the best course of action was to take a voluntary dismissal.

There was never a threat for the judge to enter an on-merits dismissal and award legal fees.

Your part is "almost right" wouldn't you say counsel? You wouldn't be leaving anything out would you?.....

Express does not "want to have the suit now" as you have described above in a somewhat misleading way. (who would "want" a lawsuit if you're not a lawyer?) But they do want the question of media shifting (including the SC trademark) cleared up once and for all and answered by a court.

A "declaratory judgement" is a request by a party who believes they "MIGHT" be in a position to be sued (as in "anticipating" another suit) but since there is no clear-cut ruling on the subject of media shifting, (in the context of karaoke discs) has asked the court to make a determination AND a "ruling" on the question at hand. This way, Expressway can know if they are violating any rights of others (like SC) if their tracks are ripped to a computer.

If you read the complaint, you'll see that Expressway refers to the "intellectual property" as "TRACKS" (i.e. "songs") and not as "discs." Which is a valid question that keeps circulating here: Do you buy "songs" or "discs?" Interesting that even with the new gem product, SC continually refers to that product as "6,000 SONGS" and not a collection of "200 discs of 30 songs each" so I'd imagine even they are selling "tracks." Expressway goes on to explain that the tracks display lyrics, logos and have audio and they are being used "in the manner in which they are intended" in their "entertainment business."

Which is another good point: They are in the "entertainment business" and they are NOT in the "disc-playing business."

SC is involved since they are the ones bringing this action against so many others as well as already suing Expressway once which was ordered dismissed. This gives SC a fair chance to present evidence to the court why they feel they should have it their way. (After all, it's only fair.... right?)

Expressway is really not asking for any huge settlement here other than their legal fees be paid for having to do this in the first place. It's more a "fact finding suit" that will determine the legal ramifications of media shifting.

It's the "big chalupa" for SC in this case however, and if they don't get their way, their "lawsuit business model" will be in big trouble.... They could always appeal if they lose so don't count your chickens - at all. If the appellate court finds that the lower court did NOT make any mistakes and upholds the judgment, it will be a nice precedent and game over.

Of course, it could also go the other way and SC could have their way but even that in no way would mean smooth-sailing for their lawsuits.


I leave the ball in my opponents' court at this time and remind him that I'm simply doing my part to keep him gainfully employed in these dark economic periods.....

Chip is right in that we buy songs that happen to be sold on a disc. I'm sure SC wants you to believe the opposite as it is easier to confirm discs per GIG than to audit thousands of songs split up into several GIGS. If you can't Media-Shift, you can't distribute the songs among several GIGS.

The SC Trademark (TM) has been encoded as a integral part of the TRACK, making each TRACK a total WORK...the Lyrics, The Music, and The TM. As such, SC should NOT be allowed to "single out," for litigation, their TM from the total WORK just because SC thinks that, upon Media-Shift, their TM becomes an unauthorized copy of their TM. The intention of the WORK was to SELL the KARAOKE MUSIC...NOT their dip sh##t TM.

Forcing a Declaratory Judgment situation on Media-Shifting to determine FAIR USE would be my direction.

Unauthorized or Counterfeit goes away if successful...and so does SC.

In the mean time, I say, just delete the TMs (Which I haven't heard one comment on the removing of the TM as an alternative to prevent an "Unauthorized TM COPY" Lawsuit).

If you aren't displaying their TM, they can't say it was an unauthorized copy of same.

The TM is the ONLY thing that SC "OWNS." That's why SC doesn't sue for Media-Shifting to an "Unauthorized COPY" of the MUSIC or LYRICS....they don't own them.

By deleting the TM's you are defacing their interlectial property and can be sued for illegal versions since the license for those tracks no longer exist.

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The Line Array Experiment is over. Nothing to see here. Move along.

If you are suggesting the original publishers, good luck... even SC let's you indemnify them against the publishers that they claim "are unlikely" to ever sue a KJ for media shifting.

So, in your scenario of "Defacing Intellectual Property," a scratched disc that displays a broken graphic SC TM image is something I can be sued for? SC could say that I intentionally wasn't careful enough in preventing their "Intellectual Property" from getting "defaced," either by displaying a Broken Graphic TM or by digital bit controlling the color table where the TM displays as a different color.

I'm really sure that the licenses for all the Tracks SC made was dependent on SC TMs.... A TM is NOT what makes a VERSION. The Lyrics and Music are what makes a VERSION. If the addition of a TM makes a VERSION complete, then, one could argue, in reverse, that SC has a stake in the Lyrics and the Music where the Artists and the Producers would owe SC a piece of the, already paid, royalties.

Besides, SC has, already, claimed that a MEDIA-SHIFTED Track has a TM that is an "Unauthorized Copy," and, therefore NOT recognized as legal. So, how is it that SC would, then, recognize the "ILLEGAL" Track to sue for IP defacing? Seems that, in doing that, SC would need to recognize the "ILLEGAL" track as legal in order to sue for IP defacing which, in turn, would make the Tracks TM valid.

Sort of a Conundrum...don't you think?

I would rather be sued for IP Defacing than a NON-AUTHORIZED TM image. SC was clever in using the term "Unauthorized Copy" with respect to their TM. But it doesn't work in reverse for IP problems.

I bought the disc. It's mine. I'll do as I want with it. Including NOT advertising for SC.

I'd say that because they are the ones who filed the suit, they want to have it now instead of having it later. I've read the complaint, and it looks to me like they think they are in danger of being sued for displaying the SC trademark at their shows. (Which is not an unreasonable apprehension, although it is not entirely correct.)

I am fairly certain that they aren't interested in having "the question of media shifting cleared up once and for all." I do know that you're interested in having that question cleared up, so maybe you're projecting your own desires onto the plaintiff in that case.



A declaratory judgment action is a lawsuit brought by a party that is reasonably in apprehension that it may be sued for a specific cause of action. (Because the jurisdiction of the federal courts is limited to actual cases or controversies, you cannot get a "determination and a ruling" on just anything. That's called an "advisory opinion" and rendering those is unconstitutional.)



The terms "songs" and "tracks" are used interchangeably by most people. I usually refer to "tracks" because to me, as a musician, the term "song" refers to a piece of music that is sung by a human voice. Since karaoke accompaniment tracks often don't feature singing, the term "song" doesn't really fit all the time although "track" does. But in casual conversation, I might refer to "songs." I would encourage you not to focus quite so much on the descriptive language.



It's my understanding that they don't play from discs, so yes, I would say they are not in the "disc-playing business." But they are in the "track-playing business," in the sense that playing karaoke tracks is part of their "entertainment business."



I have spoken to Kurt only briefly about this suit. I don't know precisely what they intend to do with it. I do know they haven't been served yet. There are options other than proceeding with it.



You and I almost agree on this point. In a DJ action, the "plaintiff" is really the defendant, and defendants usually don't get a "huge settlement" even under the most favorable circumstances. Otherwise they would be plaintiffs.



That's an interesting thought...if it goes against SC, that's the end of the universe, but if it goes the other way, everybody gets to keep fighting? That doesn't sound very fair.

The reality is that trademark infringement and unfair competition are highly fact-intensive causes of action that are usually decided on facts specific to the dispute, not over-arching principles. I'll note, by the way, that close to 100% of the challenges to our lawsuits have been procedural in nature--misjoinder being the major issue--and not on the merits of the claims at all. There have been lots of attorneys, including some very good intellectual property specialists, who have defended these suits. It's really hard to defend this kind of behavior on the merits.



My job isn't in danger of going away anytime soon. But it is nice to see that you still care. Nice to see you back, also...it was lonely in here for a few days.

To Harrington Law...

If this is the case, as you put it ("and it looks to me like they think they are in danger of being sued for displaying the SC trademark at their shows."), I'm confused. SC already is suing them. Expressway Music was one of the Defendants listed last year in 2 of the NY Lawsuits that SC initiated (or were initiated on their behalf)... Or, were those Lawsuits dropped and then refiled again at a more recent date? Could it be that Dave Z. feels that this is Double Jeopardy (or is that a term only applicable in Criminal matters), or that this borders harassment (being sued over and over again for the same thing)?

Also, ("and it looks to me like they think they are in danger of being sued for displaying the SC trademark at their shows."), why hasn't the topic of getting audited/certified been suggested to him as the solution? After all, as SC's Safe Harbor explains, (brief paraphrase here) if one goes through the Audit procedures and becomes Certified, then one will be safe from any further legal action. Wouldn't that be the end of it right there? Or is this something that has already been brought to Dave Z.'s attention, and he refuses to go through an audit procedure for some of the various reasons others have stated here (such as not wanting his discs marked or marred in any way)?

They do NOT "want to have it now" (your trademark suit) but rather want to find out if there is any legal exposure since your suits claim trademark but immediately change focus. This isn't a "trademark suit." And, that's exactly the reasoning behind a declaratory judgment: to determine if there is really a legal basis for your trademark suits isn't it?

(just nod your head... I'll understand)



I'm not "projecting" anything and that is EXACTLY what it looks like: having the question of media shifting cleared up once and for all. It appears that it is exactly what your client does [i][u]not want cleared up[/u][/i] because as long as it's a gray area, there's money to be made.



Let's make it a little "clearer:"



That's not the point. The point is that your client sues based on usage of "discs" (the physical carrier) but at the same time acknowledges that they sell "tracks" (the intellectual property). It's the old "switcheroo" depending on which is more profitable at the time.


Isn't that exactly what a KJ does when they use a disc or a hard drive? They play "tracks" off that [carrier] disc or off the [carrier] hard drive.

Really no difference. Both mediums produce sound, provide lyrics and sweeps and (unfortunately) display logos.


So, what are your "other options?" Perhaps:

(A) Simply give them a "covenant not to sue" if they will leave this question in a gray zone and just "go away?"

(B) Settle with them for some "undisclosed" amount so it will "go away?"

(C) See "A" or "B"


Fair? You're asking me about fairness?
Is suing 70 unrelated defendants with 1 filing fee fair?
Is suing disc-based KJ's (Rodney) with no real on-site investigation then file a complaint with the resulting untruths fair?
Is claiming you have "investigative evidence" but it's "privileged information" fair?

It ain't about "fair" because it's about "money."

Fair statement counsel?



The "reality" is "your reality" and doesn't diminish any other opinions or actualities - although you'd like to with that preface alone.

"Fact-intensive" is the portion where your suits seem to be lacking. Where where the "facts" when Rodney was sued? It appears there were plenty of untruths in the complaint, or when Michael Michael [sp] was sued in Arizona? And your most immediate attempt at obfuscating the facts by claiming them to be "privileged" even from the defendant?

Of course the challenges to your suits have been procedural - because it appears there less than a sufficient quantity of concrete "facts." It's all speculation.

Your turn.....

gd, with the TM it has to be willfully deleted, changed, copied or used without permission. A scratched CD or DVD or whatever isn't wilful. Someone must do something to a TM. Use, accident or wear and tear, doesn't come into effect. There is a big difference between a scratch and an alteration of some sort.

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