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Waves versus cracks: first writs issued in LA |
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Tuesday, 13 November 2007 |
 EXCLUSIVE: Waves has issued writs against five Californian studios, so kicking off its aggressive campaign to punish alleged users of pirated or “cracked” versions of its software.
At press time, PSNE’s Mel Lambert determined that lawsuits naming Waves Audio Ltd as plaintiff had been issued against five Los Angeles-based individuals: Chris Flores, doing business as Mood Swings Records; Jay Pilot (All Access Musicians Studio); Ben Gross (The Mix Room); Burt Malcuit (Nightingale Recording Studio); and Steve Steenberge, (Moonshine Studios).
In these Complaints for Damages, Waves is seeking general damages for lost product(s) valued at either $3,800 (three cases) or $4,200 (one case) and $21,000 (one case) plus interest, in addition to punitive damages of 10-times that amount, and costs of bringing the action.
Asked for comment, Steenberge recalls a visit from representatives purporting to be from a major record label who asked specifically to see Waves plug-ins. The studio owner/operator claims that what he showed these investigators was a demo version. “When a client says that they have a large budget,” he offers, “we just say ‘yes’ to whatever they need. Then you go out and buy it.” Steenberge recalls receiving a subsequent phone call from a third party seeking a settlement for unauthorized soft- ware, but rejected the offer as being unreasonable because he had only shown demo versions. According to the Summons dated October 19th by Los Angeles Superior Court, Steenberge has 30 days to file a written response.
Unauthorised use of audio software and plug-ins is theft. While nobody would refute that assertion, it is not obvious whose interests are best served by a new organisation that made its first public appearance at the recent AES Convention. During a specially organised press conference in New York, BanPiracy’s CEO Michael T. David (also managing director of the Omaha-based Allied National debt-collection agency) and COO Tomer Elbaz (pictured on left with Michael David) faced questions from the pro-audio media.
As reported exclusively by Gez Kahan in the August 2007 edition of PSNE, seed funding for Washington-based BanPiracy has been provided by Waves, which initiated an aggressive campaign to unearth illegal use of its products. “We plan to issue lawsuits to studios in Manhattan and Los Angeles,” David told the AES press conference. While the total value of these lawsuits was estimated to be $17 million, during subsequent conversations with BanPiracy’s CEO, it turns out that the expected compensation from this litigation will be approximately $4 million. Unlike the European-directed initiative, which sought to secure up to four times the value of the pirated software, the US lawsuits will be seeking larger damages.
David reported that 10 lawsuits had been filed through the New York court by its attorney, Manhattan-based Maidenbaum & Associates, with 11 more in preparation. On the West Coast, the first six of a total of 27 lawsuits are in process by Los Angeles-based Goldman & Associates, in addition to an undetermined number in Miami and South Florida. At press time, PSNE had been unable to secure access to copies of the other filed lawsuits.
BanPiracy representatives have visited a total of 1,200 studios around the world, David said, and discovered that 50% of these facilities, on average, were running stolen or cracked/pirated Waves software. “In the midwest this figure is closer to 25%”, David later told PSNE, “while in Germany and Asia the figure rises to 80%.” BanPiracy follows a four-stage process, the CEO pointed out: 1. Discovery of piracy within a recording/production facility; 2. Sending a Letter of Liability; 3. Discussing a Settlement Offer; 4. Trial Lawsuit. “Nobody wants to go to court,” David confirms. “We only [have our attorneys] file lawsuits on the studios that have chosen not to … discuss settlement of our claims.”
But it is unclear whether or not BanPiracy is familiar with the way that commercial recording facilities operate, specifically any legal responsibility they bear for a clients’ activities.
Questioned about how a large, multi-room studio might ensure that producers and artists working in a lock-out session were not using computer rigs running unauthorised software, BanPiracy executives could only offer that the organisation was pursuing cases wherever it uncovers illegal activities, while declining to discuss specific experiences.
Although BanPiracy may be accused of making some poorly considered choices regarding its public image, it did reveal a positive aspect of its campaign. A specific area on the banpiracy.com website labeled “Go Legit” lets studios discover how they can upgrade to become legitimate users. “This initiative lets us educate users about the true costs of piracy,” former Waves director Elbaz told the AES press conference. Elbaz also claimed that studios using cracked software are charging 50% less than facilities that own fully licensed applications and plug-ins, but provided no evidence for this claim.
“Engineers have the financial and moral responsibility to own what they use,” considers the general manager at a leading Nashville studio, who, because of possible repercussions, spoke to PSNE on conditions of anonymity. “We would never question whether someone ‘owned’ a piece of rack gear brought into the session by a guest engineer, so why should we question whether a piece of software brought in by the engineer, to be used on his session, is ‘owned’ by that engineer? If I saw someone cracking a plug on one of our rigs, I would stop it. But, beyond that, what really can we do?”
“Because the licensing cost from Waves and others is so expensive,” explains the studio manager from a leading West Coast recording complex, “individuals with their own rigs have pirated/cracked software on them. But we wouldn’t know it because we don’t look. Perhaps this problem is more an individual abuse than a corporate one; then again, [because] studios have deeper pockets – and liability insurance – than individuals, they’re a better target for this sort of investigation. We delete all files from our rigs when the client leaves, including any plug-in remnants.”
“We are in active discussion with a number of companies we met at the AES Convention,” David concludes, “including software developers. Our subsequent agenda includes consulting with studios about software verification.”
Web
» www.banpiracy.com
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