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It can be estimated that millions of people around the world share music over a file-
sharing network. For this article, I am addressing the issue in America mainly
because I am not aware of the laws in other countries. Do you think it is illegal to
download music from file-sharing networks? What about music you already own? An
important recent court decision will answer these questions directly and you might
be surprised.

Recently the United States Court of Appeals for the Seventh Circuit heard a case
against a Chicago woman, Cecilia Gonzalez. Many plaintiffs including BMG, Sony and
others brought the case against her. Gonzalez allegedly had downloaded over 1,000
songs through KaZaAalthough she admitted to only 30. Keep that number in
mind, 30. Many, if not just about all, people who download files over a file-sharing
network don’t stop at one file. Thirty files can be reached in minutes to an hour
without thought. In fact, it was alleged that Gonzalez downloaded 1,370 songs in
just a few weeks, which is an average of 65 songs per day.

If you where caught downloading thirty songs over a file-sharing network, what
would your defense be? Let’s look at two specific common defenses and see how a
court might react. I have selected two defenses that I feel are most common,
because they not only appear in the court case I have referenced, but many others I
have surveyed would try to use them as their defense as well.

First Defense: I was simply trying out the songs to see if I liked
them and then I planned to buy the ones I liked and erase the ones I don’t.
(Simplified: try-before-you-buy)

Judge Eastbrook, one of the judges hearing the Gonzalez case, pointed out that this
defense is not valid because one had many avenues to hear music before
purchasing. Eastbrook names iTunes, radio, internet radio, Yahoo! Music and others
as ways to legally try before buying. If this was going to be your defense, you will
lose.

Second Defense: I am only downloading music that I already
own.

This seems like a great defense, at first. You already own the music and the law
allows you to create a backup copy. Ah, but here is where it goes south.
Downloading music you already own is not considered fair use under the U.S.
Copyright Law and your action is therefore copyright infringement. See UMG
Recordings Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349.

Furthermore, the try-before-you-buy scenario is really blown away by the fact that
you no longer need to buy CD’s in whole. iTunes really helped change the legal
arena in this respect because a user can both sample songs at their leisure and
purchase single songs. The ability to purchase single songs is the big one.

In the end, Gonzalez lost her case. The thirty songs, that would have cost $29.70 at
iTunes, will end up costing her $22,500 in damagesimagine what it would be if
the plaintiffs had pushed for a decision on all 1,370 songs. She was given the
opportunity to settle for $3,500 before going to court, which she declinedanother
bad decision. If you download music over file-sharing networks and are caught,
what will be your legal defense?

Jason A. Martin is a Journalism Major (Political Science minor) and future law
school student.

His blog deals with Politics, Media and
the Law. You can view it at JasonAMartin.com.

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Whether you’re a music manager or an aspiring musician, I believe you should always hope for the best when you sign your music management contract. After all, your partnership signals the beginning of some very great things. With lots of hard work and a little time, a manager and a musician can accomplish a lot together.

Of course, it doesn’t always work out that way. The reality is that even successful musicians don’t always stay with the manager that brought them to the first big break in their careers. Managers and clients often separate when a record label demands that a signed act bring in experienced supervision before cutting an advance check. Other times, managers that are tremendously effective for clients in their home region can get stretched too far when their clients start touring nationally. And, in the worst cases, managers and clients start behaving poorly towards each other after a personal dispute.

Whatever the reason for a split between a music manager and an artist, both parties must protect themselves from exploitation by adopting a “sunset clause” in their music management contract. A sunset clause recognizes the contribution that a manager has made to an artist’s career, while leaving the door open for artists to effectively void their agreement and work with other professional advisers.

In most cases, the “sunset” refers to the amount of commission paid to a manager over the two years after a split. Most music industry professionals agree that it can take two years for a band and their new management to put a new strategy in place. Therefore, a sunset clause typically grants the old manager full commission for six months following the split, stepped down by a third every six months until the former manager no longer can claim a commission.

Without a sunset clause, a band could split with their management and still find themselves liable for paying commissions of twenty percent or more for a period of up to seven years. Some unscrupulous managers sign deals with clients, only to perform no duties and sue for management commissions. On the other hand, an effective manager can use the sunset clause to recoup their investment of time and money when a client becomes successful enough to warrant signing on with a larger, more experienced management team. The sunset clause forces both parties to take their relationship seriously, while allowing for the possibility that a band and their manager might grow apart before the end of their traditional seven-year contract term.

Joe Taylor Jr. has written four books about the music business for aspiring musicians, including Music Management for the Rest of Us. You can learn more about professional music management contracts at: http://www.musicmanagementfortherestofus.com/contracts/

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