Copyright Scholar Challenges RIAA/DOJ Position 168
NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."
Re:hmm (Score:1, Informative)
She's at Boalt Hall.
Re:hmm (Score:5, Informative)
Re:Excellent (Score:5, Informative)
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.
The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.
Re:Excellent (Score:5, Informative)
yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).
The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.
If you think law review articles are not read by the courts and considered carefully you are wrong.
In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.
Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.
Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.
Re:Excellent (Score:5, Informative)
these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings
You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.
They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.
Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.
Re:Excellent (Score:3, Informative)
In many 'cutting edge' areas of law many judges cannot be 'up-to-speed' without input from reasonably respected sources of legal scholarship to draw upon.
Nor can any lawyer prepare a proper brief without him or her self engaging in scholarship. When I went to law school I was working in a law firm at the same time, and found it impressive how intimately related legal scholarship and legal work were. Any lawyer who is not also a scholar is not a top notch lawyer.
Re:Deep pocket lobbyists will get you everything (Score:5, Informative)
Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?
Yes, but that's part of why it's bullshit. You can't make one person pay for the transgressions of 100 others. That's the canonical definition of "scapegoating", and it has no place in law.
Re:Won't the Supremes intervene again? (Score:3, Informative)
I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)
You'd have to be. The first four we (and most) can agree on, but I'd be surprised if Souter would side with the RIAA and DOJ on this one. While appointed by GHWB, he has tended towards the liberal side in most decisions. He's rather "common sense", using the Constitution as a general guideline not a strict rule--he'd likely side with the little guy in this case.
Re:Deep pocket lobbyists will get you everything (Score:5, Informative)
You can't make one person pay for the transgressions of 100 others.
That would be the case if the RIAA/MPAA argued that you are responsible for them downloading.
I think the MPAA/RIAA argument is that you are responsible for 100 counts of uploading (for n=100).
I think that's a reasonable argument: if you do something wrong a hundred times, you should pay for all hundred.
It's just that they don't provide any good evidence. ... And their legal maneuvers are dubious. Go to Ray Beckerman's site for a lawyer's argument as to why.
Re:Deep pocket lobbyists will get you everything (Score:3, Informative)
Purportedly, the RIAA can identify each of the people who illegally acquired a copy
No, actually they've admitted they can't [blogspot.com].