Tom Lee Decries "Negative Action," Sues Blogger

Responding to the federal lawsuit pending against the AFM, Tom Lee had this to say to Film Music Magazine:

It is regrettable that individuals have been convinced to go down this path. The AFM hopes that cooler minds will prevail and this ill advised action will be abandoned so that we can concentrate our efforts on matters of greater concern to a wider group of musicians throughout the US and Canada. We need to focus our efforts on passing the performance rights bill which will benefit musicians in the United States. . . .We urge these individuals who filed the lawsuit to join the huge majority of their brothers and sisters in working for positive change that will affect a greater number of our members instead of taking negative action which ultimately threatens the welfare of our members.

We can't blame Tom for the vacuous response; he is, after all, a politician, and a successful one. However, Tom Lee is not averse to "taking negative action" himself, from time to time.

In November 2006, Tom Lee and the AFM filed a federal lawsuit against an anonymous blogger ("John Doe") for a satirical posting at The AFM in Trouble. The posting showed a fake letter from Tom Lee endorsing Mary Landolfi for President of Local 802. Tom Lee's suit alleged trademark infringement for use of the AFM seal, and defamation. (To learn more about defamation on the internet, read Allegro's May 2008 article by Harvey Mars, Esq.)***

Because the blogger posted anonymously, Tom Lee and the AFM's lawyers got a court order to require Google to reveal the blogger's identity. (Google owns Blogger, the free blog publishing service used by The AFM in Trouble.) Google provided an IP address (a number which identifies a computer on the Internet) and an email address—but not the name and address of John Doe.

The IP address was owned by Comcast, an internet service provider, so it looked like John Doe was a Comcast subscriber. Tom Lee went back to court and got a court order to require Comcast to divulge the name and address of John Doe. However, Comcast had purged its records, and could not tell which of their subscribers was John Doe.

But Tom Lee still had the email address: nopercap@yahoo.com. (That address is currently undeliverable.) So, Tom went back to court a third time, to get an order requiring Yahoo to unmask John Doe. And here, in June 2007, the court records fall silent.

The International Executive Board (IEB) was first informed in March 2007 about an "election campaign issue...involving a questionable letter of endorsement that had surfaced on the internet." This suggests that the IEB was not particularly "clued in" to this lawsuit, which had been filed over three months (and two IEB meetings) earlier. In addition, the lawsuit is not merely an "election campaign issue" at all. Tom Lee's complaint seeks to "punish Defendant and set an example."

Though we do not know if Tom Lee was successful in unmasking John Doe, we are sure that if he wasn't the plaintiff, Tom Lee would regard his own lawsuit as frivolous. (We will let readers decide for themselves how similar the AFM seal is to the ostrich seal at The AFM in Trouble, and whether they think the posting defames Tom Lee.)

However, we have to agree with his statements, if not his actions, that the AFM must come together and concentrate on issues of importance. This is essential if the AFM hopes to avoid the fate of the trademarked seal at the center of Tom Lee's lawsuit: expired.

***The "AFM in Trouble" blog disappeared from the Internet a few weeks after this story appeared. The "AFM seal" in John Doe's satirical posting pictured an ostrich with its head in the sand in place of the lyre and laurels found on the actual AFM seal.

RMA v. AFM, Now in Federal Court

On March 29, 2008, at the New England Conference in Newport, Rhode Island, President Tom Lee and Secretary-Treasurer Sam Folio arose to tell the story of their recent trip to Los Angeles.

The duet told of their positive meetings with recording musicians. The video games business, they said, is growing, and will be a great source of income for our musicians. Secretary Sam said "the trip was a success, with more work ahead."

Members who relied on Tom and Sam's version would be completely in the dark about the real story, in particular a major federal lawsuit between the RMA and the AFM.

Hostilities between the RMA and Tom Lee's administration have escalated since the AFM "promulgated" (as opposed to "negotiated") a one-page video game agreement, which is substantially pro-employer and unfavorable to musicians. Tom Lee's administration argued that this pro-employer stance was necessary to bring video game work into the union. This one-page agreement is at the center of the lawsuit filed in U.S. District Court in California.

In September 2007, the RMA requested an accounting and a refund for work dues paid under this and other "promulgated" agreements. Under AFM bylaws, only "negotiated" agreements are subject to work dues. No communication developed between the RMA and the AFM; no accounting or refunds were made or discussed. Tom Lee's administration ignored the propitious moment. The RMA proceeded to file suit.

The RMA is one of the largest contributors of work dues to the AFM. One would hope that our elected AFM officials would not avoid dialogue with any single member, let alone the combined voice of recording musicians. We elect officials precisely to reach common ground with aggrieved members, and to develop solutions mutually agreeable to all. Costly litigation should be the last resort.

Because the RMA had substantive objections to the one-page agreement from its inception, they asked Tom Lee in December 2006 why they were given no opportunity to ratify the agreement. After all, the AFM bylaws require a ratification process for all "negotiated" agreements.

AFM General Counsel Jeffrey Freund responded that a "promulgated" agreement was completely different from a "negotiated" agreement, and was not subject to the ratification requirement. The one-page agreement is a "promulgated" agreement, so neither the RMA nor anybody else would have any say in the matter. At this point in time, when it benefited them, the AFM was only too happy to highlight the differences between a "promulgated" agreement and a "negotiated" agreement.

Embarrassingly for the AFM, Attorney Freund's reasoning then may win the case for the RMA now. If a "promulgated" agreement is so different from a "negotiated" agreement that it short-circuits the ratification requirement, then why doesn't it also short-circuit the work dues requirement? The bylaws, after all, require work dues only on "negotiated" agreements. How can Attorney Freund and Tom Lee's administration justify interpreting the bylaws one way when it suits them, and the opposite way when it doesn't?

Though our elected AFM officials keep their lips sealed, the federal case against the AFM is a matter of public record, and we offer the following documents for interested readers.

Letter from AFM General Counsel Jeffrey Freund Explaining the Difference Between "Promulgated" and "Negotiated" Agreements
RMA's Opposition to AFM's Motion to Dismiss
AFM's Withdrawal of AFM's Motion to Dismiss

Clarification (4/27/2008): The plaintiffs are three individual RMA members, not the RMA itself. Larger issues remains between the RMA and the AFM, but the RMA and its representatives have nothing to do with these lawsuits, and have not instigated or approved them.