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:Deep pocket lobbyists will get you everything (Score:5, Interesting)
The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy. How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?
They can't. The DOJ's brief was nonsense. For that and a number of other reasons.
Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.
Excellent (Score:4, Interesting)
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.
Support Roll Your Own Artists! (Score:4, Interesting)
Whatever happened to improvisational near real time performances in the public domain.. rotfl.
Well anyway if someone wants a recording of the bad storms that rolled through here about 3 hours ago with some guitar recorded live.. here it is.
Tennessee Storms of April 10, 2009 and guitar [archive.org]
Like the universe..the net has a lot of alternatives, and not just mine. Stop being force-fed what you like.
Obama Justice Department (Score:4, Interesting)
So how's all the Hope and Change working out for you?
Re:Deep pocket lobbyists will get you everything (Score:5, Interesting)
I'm man enough to admit that I have pirated music which I would have paid for otherwise.
I guess I'm not. I will NOT buy CDs or anything on iTunes, but as soon as Amazon started selling MP3s that:
I started purchasing every song in my download folder and that was available through them (I tend to keep my collection pretty clean and delete anything I don't like after a play or two). Yes, that meant a few hundred dollars over the last several months. Yes, that also means there are some songs in there that still aren't legit (they're not available through Amazon).
Amazon, in short, has what I want the way I want it, and I'm quite willing to pay for that. I suspect that, once this silly DRM thing goes away, people will be plenty honest enough to keep the music business from dying. The days of obscene margins on an artificially-scarce product are over, but the death of the industry is not at hand.
IF the labels keep a cool head about it and don't do anything (else) stupid.
Re:Won't the Supremes intervene again? (Score:3, Interesting)
Re:Deep pocket lobbyists will get you everything (Score:3, Interesting)
I download albums off TPB and if I like them, I buy them off iTunes. I will not support any type of physical distribution of music - that era is dead and gone and I don't want any music publishers to think otherwise.
Interestingly, digg did an interview with Trent Reznor of NIN recently and it was really intriguing. He had a lot of really insightful and balanced comments regarding the music industry and the direction of online content distribution.
I wish the music publishers would watch it, they might learn a thing or two.
Re:Deep pocket lobbyists will get you everything (Score:1, Interesting)
If I recall correctly, the FSF amicus was filed to try to help out Joel Tenenbaum in his defense against Sony UMG Music Entertainment's infringement suit against him. Does it strike anyone else as odd that statutory damages are being treated as the big issue in his case?
Based on exhibit B to the complaint against Joel Tenenbaum (1:07-cv-11446), he appeared to have been sharing over 1,200 songs through KaZaA under the username sublimeguy14@KaZaA. The Complainants identified seven songs that they claimed he was illegally distributing.
At $750 to $150,000 per work, Joel faced a potential liability of $5,250 to $1,050,000 based on the songs identified. Although if all of the works he appeared to be sharing were under copyright and were being distributed illegally, his potential liability was actually $900,000 to $180,000,000. If he were an innocent infringer, his statutory liability (assuming every copyright owner sued on every work) would have been as low as $240,000.
These potential liabilities at stake make good fodder for lobbying Congress, but they don't seem all that relevant to Joel Tenenbaum's particular case.
Why? Because Joel Tenenbaum had a good opportunity to get out of this whole mess when he was asked to settle for $4,000. That's $571 for each work specifically identified, and about $3.33 for each work that he was actually sharing (of course a settlement would not have excluded other copyright owners from independently filing suit).
Instead of agreeing to the settlement, Joel Tenenbaum countered with an offer of $3,000. When the complainants didn't accept the $3,000, he filed for Rule 11(b) sanctions.
This just doesn't seem like the right case to press the judiciary to strike out statutory damages for copyright infringement. Sure, the potential liabilities are astronomical, but those aren't what Joel Tenenbaum seems to be facing in reality. Moreover, actual damages (plus attorneys' fees) for the seven songs identified seems to be inadequate as a deterrent. At a potential return of $1-3 per song, the complainants couldn't even afford to pay someone to identify that those seven songs appeared to be infringed.
Re:Obama Justice Department (Score:3, Interesting)
Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
Re:Excellent (Score:3, Interesting)
Could a couple of concerned US citizens set up a a test case and 'fully litigate' it in order to set a legal precedent?
I'm sure we could find a slashdotter who can write a song (quality unimportant), copyright it, and then have it pirated by another slashdotter and then press for RIAA style damages (which would be given back in the unlikely event of a win).
Re:Deep pocket lobbyists will get you everything (Score:3, Interesting)
Re:Obama Justice Department (Score:3, Interesting)
Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.
Re:Deep pocket lobbyists will get you everything (Score:5, Interesting)
If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
Guess again. There are now enough internet radio stations and independent artists who are willing to provide music for free that it would be quite feasible to go without buying any music.
But this serves only to demonstrate that your premise of it being impossible to listen to music without paying for it is flawed, since there is no way to regulate the actions of people who want to give their works away. If there were, I doubt that Linux would cease to exist.
Re:Deep pocket lobbyists will get you everything (Score:4, Interesting)
Do you really believe that people shouldn't have to pay for music, movies, video games, software, etc...?
Who is saying that? It's the mechanisms we don't like. Face it, copyright is broken. There is no technically feasible way to stop copying. DRM does not work. And there isn't any social way to stop the sharing either. It's hard enough just trying to figure out whether a particular act of copying is legal or not. I think a good comparison is with so-called morality legislation, where some group attempts to have whatever sort of sex they don't like outlawed. Those sorts of laws plain do not work. Consenting adults can engage in whatever sex they like and no outsider will easily find them out. So it is with copying.
I support compensating artists for their work. I don't support the concept of "copyright" as a means to that end, because copyright has no teeth. It no longer works. It only worked in the past because copying used not to be so easy, requiring much expensive and bulky equipment that could be monitored. Today, sharing files is much, much easier than sex. It's like virtual sex.
But until we get the law caught up with reality, these MAFIAA organizations are cynically using a very favorably puffed up, monopolistic, warped version of copyright that isn't (or wasn't) supported by the actual law, to threaten and extort a very small fraction of the technically guilty public, which is pretty much everyone. Canada put a levy on blank media to settle the grievances of the entertainment industry, but for some reason which is probably the mindless pursuit of every last dollar real or apparent, the industry is still trying to sue individuals, game the legal system, or just outright renege on the deal by bribing legislators to pass more legislation doing just that.
I don't understand what the end game is for slashdotters.
For me, the eventual withering away of copyright is the goal. When we have other means of compensation in place and working, and working so well that copyright is merely a useless impediment, then we can let it die. Until then, artists will have a choice of means. Copyright will be only one of those means. There would have to be some exclusivity-- no one should be allowed to have it both ways, that is, collecting money under whatever alternative compensation scheme arises and then turning around and denying people so they can make (or think they can make) yet more money with copyright. The law can keep copyright enshrined forever, it just won't be used, not with other, superior methods in place.
Can you imagine what things would be like if people no longer had to fear the hammer of copyright violation? Want to do Star Wars or Lord of the Rings your way? Think someone else could sing and play the Beatles' songs better than the Beatles did? Think the dialog in Star Wars could stand some serious improvement? "You will never find a more wretched hive of scum and villainy", etc. Go for it, and Lucas, the Beatles, or the Tolkien estate won't have any say about it. The current situation is absurd. Save for parody, they get to dictate the value of and uses to which their "property" is put because not being in total control could somehow harm that value. I recall a boy did just that with Star Wars, and, incredibly, they considered suing the child! We might see a real flowering of the art of mashups. We might see genuine improvements of stories-- not bowdlerization but actual refinements, and the preferred version of a story could easily be something many authors worked on. Sort of like a certain work known as The Bible. As for the rest of us, we'll have the freedom to openly use our computers and networks to their fullest powers.
Re:Deep pocket lobbyists will get you everything (Score:3, Interesting)
Interestingly most torrents you struggle to get people to upload to 1. Doesn't that mean you uploaded 1 copy if your ratio is 1 and your responsible for 1 Copy.