Music Business

Eric Clapton pretends to regrets suing a fan who listed a bootleg of one of his CDs on Ebay

Eric Clapton starts to second guess his decision to sue a woman for copyright infringement.

 By Mike Masnick from Techdirt

There is no greater example of just how totally broken copyright is than the story of Eric Clapton suing — and winning — a poor German woman for copyright infringement after she listed (but did not sell) a bootleg CD that her late husband had purchased in a store. The woman had no idea it was a bootleg. She just knew that she had the CD and wanted to sell it, so she put it on eBay. Eric Clapton — who has been a despicably awful human being for decades — sued her over this and won. He won, despite the fact that (1) she hadn’t bought the CD, and was just selling her late husband’s CD, (2) she had no idea it wasn’t authorized, (3) she didn’t actually sell it, as she quickly pulled down the listing, and (4) it was just one damn CD and she listed it for less than $12. And not only that, under German copyright law, she was told she also needed to pay Clapton’s legal fees.

Lots of people (reasonably) got mad about Clapton for pursuing this case, and we’ll get to that in a moment, but you should also be furious about copyright laws. Because that’s what makes this sort of absolute nonsense not just possible, but plainly encouraged.

We’ve pointed out in the past that one of the biggest problems of copyright in the internet age is that it was designed for a time when “infringement” generally had to mean deliberate attempts by commercial entities to copy someone else’s work and profit off of it. The internet has laid bare just how unfit for purpose copyright is by suddenly turning us all into lawbreakers many times over every single day. At that point, it should be obvious that it’s the law that’s the main problem.

“copyright toleration”

However, as we highlighted in a guest post a few years back, copyright hung on as relevant for a few decades in part because of the concept of “copyright toleration,” in which the vast, vast majority of those daily infringements were ignored by rights holders. However, as that article has detailed, we’ve seen increasingly less “toleration” these days, which explains things like the nonsense demands for universal upload filters by the music industry.

But, still, there remains some discretion in all of this, and that’s where Eric Clapton is still very much at fault. After this story came out, shortly before Christmas, and went viral with lots of people trashing Clapton for such nonsense, his team, trying to do a bit of damage control put up a statement trying to justify what happened. It’s… not particularly convincing.

Germany is one of several countries where sales of unauthorized and usually poor-quality illegal bootleg CDs are rife, which harms both the industry and purchasers of inferior product. Over a period of more than 10 years the German lawyers appointed by Eric Clapton, and a significant number of other well-known artists and record companies, have successfully pursued thousands of bootleg cases under routine copyright procedures.

So, it starts out with “the bootleggers made me do it.” And also a whiff of “well, the lawyers just kinda went off and did their own thing.” Which doesn’t actually help matters. When lawyers file lawsuits on your behalf, it’s still on your behalf and you’re still responsible for what they do. They represent you. If you don’t like how they represent you, well, that’s your problem.

It is not the intention to target individuals selling isolated CDs from their own collection, but rather the active bootleggers manufacturing unauthorised copies for sale. In the case of an individual selling unauthorised items from a personal collection, if following receipt of a “cease and desist” letter the offending items are withdrawn, any costs would be minimal, or might be waived.

Eric Clapton’s lawyers and management team (rather than Eric personally) identifies if an item offered for sale is illegal, and a declaration confirming that is signed, but thereafter Eric Clapton is not involved in any individual cases, and 95% of the cases are resolved before going to Court.

So, this is Clapton distancing himself from the lawsuit. Except, again, the lawyers file it on his behalf and in his name. You can’t dismiss it so easily like that. If its other people doing it, then get better people. Also, a lot of this sounds like blaming the woman for not just settling up front. It’s very copyright troll-like in its wording. “If only you had given in to our bullying up front, none of this would have happened.” It’s playing victim that the woman didn’t just roll over when Clapton’s legal team sent its ridiculous threat letter.

And, again, if this was not who they intended to target, they could have stopped the case at any point, rather than push it forward. But they just kept pushing it forward. Indeed, again the statement blames the woman for responding in a dismissive fashion to their original cease-and-desist:

This case could have been disposed of quickly at minimal cost, but unfortunately in response to the German lawyers’ first standard letter, the individual’s reply included the line (translation): “feel free to file a lawsuit if you insist on the demands”. This triggered the next step in the standard legal procedures, and the Court then made the initial injunction order.

Note the passive voice here: “this triggered.” No, it “triggered” nothing. Apparently, the lawyers who Clapton hired decided to punish this woman because her reply was snarky, and filed a lawsuit because she listed a single CD on eBay. Again, take some responsibility.

If the individual had complied with the initial letter the costs would have been minimal. Had she explained at the outset the full facts in a simple phone call or letter to the lawyers, any claim might, have been waived, and costs avoided.

More victim blaming. The entire whiny response is just blaming the victim over and over and over again. Then they blame her again for appealing the original injunction, which she was free to do because to anyone looking at the facts of the case, the whole thing seemed ridiculous. But Clapton blames her for appealing:

However, the individual appointed a lawyer who appealed the injunction decision. The Judge encouraged the individual to withdraw the appeal to save costs, but she proceeded. The appeal failed and she was ordered to pay the costs of the Court and all of the parties.

It was only after all this bad publicity (and a chance to spend 7 paragraphs victim blaming), that Clapton’s management says he won’t take any further action. But even then, the letter does so in a way that still suggests that the woman is to blame if any more costs accrue:

However, when the full facts of this particular case came to light and it was clear the individual is not the type of person Eric Clapton, or his record company, wish to target, Eric Clapton decided not to take any further action and does not intend to collect the costs awarded to him by the Court. Also, he hopes the individual will not herself incur any further costs.

Notice also what’s missing: there is no apology. There is no admission of doing anything wrong at all. There is only blaming the woman, the use of a passive voice, and trying to pass the buck from Clapton — in whose name and copyrights this was done — and arguing that it’s all these lawyers’ fault. The lawyers Eric Clapton hired to file lawsuits on his behalf.

Copyright is broken and it’s a problem, but people like Eric Clapton demonstrate just how messed up the law is with nonsense like this.

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1 Comment

  1. Mike – I find your article very biased and far too critical . While Clapton has made several mis-steps , he also done a lot of really great things for a whole bunch of people. As example, Clapton almost single handidly brought black blues music to white America. He made regae popular with his version of ” I shot the sherif” and he’s raised countless millions of dollars for charity. Go ahead and pile on against him for his anti-vac opinions but let’s also give credit where credit is due.

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