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Obama DoJ Goes Against Film Companies 321

Posted by Soulskill
from the shaking-things-up dept.
NewYorkCountryLawyer writes "If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism. Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism. Chalk one up for those who like to point out that, occasionally, the system does work. You may recall that the US Supreme Court has been mulling over whether to grant the film industry's petition for certiorari seeking to overturn the important Cartoon Networks v. CSC Holdings decision from the US Court of Appeals for the 2nd Circuit. This was the case which held that Cablevision's allowing its customers to make copies of shows and store them on Cablevision's servers for later viewing did not constitute a direct copyright infringement by Cablevision, there being no 'copy' made since the files were in RAM and buffered for only a 'transitory' duration. The Supreme Court asked the Obama DoJ to submit an amicus curiae brief, giving its opinion on whether or not the film companies' petition for review should be granted. The government did indeed file such a brief, but the content of the brief (PDF) is probably not what the film companies were expecting. They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."
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Obama DoJ Goes Against Film Companies

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  • by Anonymous Coward on Sunday May 31, 2009 @12:02PM (#28158727)

    He knows the opposition's position as well as his so he can counter it up front. If he can't put himself in the opposition's shoes and argue against them, then they're going to suck.

    These guys argued the other side forever, they *should* know how to tear that apart now.

    • by Sun.Jedi (1280674) on Sunday May 31, 2009 @01:18PM (#28159321) Journal

      These guys argued the other side forever, they *should* know how to tear that apart now.

      If they knew how to tear it apart, and they did by my understanding of the brief [beckermanlegal.com], then they knew the original case was flawed. If the case was flawed, a reasonable person or persons would not attempt such a case in the first place with the intent on 'winning'. If they are not trying to win, then is it a fair and reasonable use of the courts for these ulterior motive shenanigans? Are there penalties for such behavior?

      I guess I'm also wondering if this suddenoutbreakofcommonsense has implications in current or future litigation where the RIAA/MPAA or other content redistributors are the plaintiff.

      • If they knew how to tear it apart, and they did by my understanding of the brief [beckermanlegal.com], then they knew the original case was flawed. If the case was flawed, a reasonable person or persons would not attempt such a case in the first place with the intent on 'winning'. If they are not trying to win, then is it a fair and reasonable use of the courts for these ulterior motive shenanigans? Are there penalties for such behavior?

        The specific lawyers who represented the RIAA and MPAA, and are now in the DOJ, are recused for two years from working on any of these types of matters. So they are not supposed to have had anything whatsoever to do with this brief. And from all appearances they did not, since this brief was written with much greater integrity and respect for copyright law than their arguments ever exhibited.

        I guess I'm also wondering if this suddenoutbreakofcommonsense has implications in current or future litigation where the RIAA/MPAA or other content redistributors are the plaintiff.

        Only time will tell. The two other government briefs of which I am aware in this type of litigation, which have been submitted by the government subsequent to the RIAA lawyers's going to work for the DOJ, were both quite poorly done, and took wild and crazy legal positions obviously calculated to please the RIAA overlords.

        • by Nefarious Wheel (628136) on Sunday May 31, 2009 @06:21PM (#28161677) Journal

          The two other government briefs of which I am aware in this type of litigation, which have been submitted by the government subsequent to the RIAA lawyers's going to work for the DOJ, were both quite poorly done, and took wild and crazy legal positions obviously calculated to please the RIAA overlords.

          I am beginning to suspect that there are more un-bent, ethical legal professionals out there than my early upbringing seemed to indicate. We are such children of the meme-stream...

          It's difficult to consider at times that professionalism sometimes means being loyal to your employers until you can beat a retreat. I suppose that must be a part of the legal profession. At least some percentage of the lawyers out there went into the profession on the belief that they could right wrongs, and it's beginning to look like some people kept the faith all the way to the top.

          I am now wondering if some of those DOJ ex-**AA legals didn't weep at the prospect of being able to escape.

          All in all, I found that to be a nice piece of news. And I'm beginning to harbour some nice suspicions.

          • All in all, I found that to be a nice piece of news. And I'm beginning to harbour some nice suspicions.

            Well, like I say... I'm not ready to genuflect just yet. But this brief was good news.

            • by Nefarious Wheel (628136) on Sunday May 31, 2009 @07:15PM (#28162027) Journal

              Well, like I say... I'm not ready to genuflect just yet. But this brief was good news.

              Where's Tom Lehrer when we need him? Two, four, six, eight...

              Actually I'm beginning to think this whole copyright business was scripted by Gilbert & Sullivan. Anyone?

              I'll start it.

              "This is the very model of a copyright attorney brief

              In amicus it challenges the findings for recording fiefs

              It simply disassembles any arguments enjoining use

              Of any little copies kept in RAM for momentary use!

              The data kept in buffers necessarily but fleeting is

              Not there for long enough to be infringing on your rights it is

              It's not enough to keep petitioners to keep petitioning...

              (pause)

              Your language overbroad is far too scattered to define the thing!

        • by schon (31600) on Sunday May 31, 2009 @07:27PM (#28162099)

          When Obama was elected, one of the things that was most apparent was his understanding of technology and related issues. When he appointed the ??AA lawyers to the DOJ, there was a large outcry from people who believed he was being influenced by his party's traditional media kowtowing.

          The specific lawyers who represented the RIAA and MPAA, and are now in the DOJ, are recused for two years from working on any of these types of matters. So they are not supposed to have had anything whatsoever to do with this brief. And from all appearances they did not

          I'm wondering if the ??AA lawyer appointments weren't designed to "take them out of the game". If so, it's a brilliant move, IMHO. :)

  • Good call (Score:5, Insightful)

    by PktLoss (647983) on Sunday May 31, 2009 @12:09PM (#28158789) Homepage Journal

    Can someone mod those lawyers up? +1 insightful.

    • by Daimanta (1140543) on Sunday May 31, 2009 @12:48PM (#28159079) Journal

      "Can someone mod those lawyers up?"

      Something I would never expect to see here on /.

      Furthermore, it's modded 4 Insightful.

      I'm staring at my window now, waiting for a pig fly-by.

    • Re: (Score:3, Funny)

      Sorry, that doesn't actually work outside of Slashdot.

  • by Nesman64 (1093657) on Sunday May 31, 2009 @12:10PM (#28158797) Homepage
    I know it isn't likely, but I would love to see this evolve into a situation where I could time shift my MythTV recordings with other users over BitTorrent.
    • by bughunter (10093) <bughunter&earthlink,net> on Sunday May 31, 2009 @12:25PM (#28158927) Journal
      I'd be happy if it just leads to a ruling that I can back up my DVDs onto my networked media server so i can a) bypass advertisements and b) stream them to other TVs in the house. I don't copy from or make available to anyone outside the walls of my house, and my media server is not shared over the internet.
      • by decoy256 (1335427) on Sunday May 31, 2009 @01:08PM (#28159233)
        This needs to be the main focus of digital rights, at least right now. When I buy something, I should have the right to transfer it to any media form I deem proper for my own uses. Heck, if I wanted to transfer my DVDs to BetaMax, I should have the right (of course, the reverse is also true and the more likely/useful application of this theory).
        • Re: (Score:3, Insightful)

          Hear hear! Wanna know why Blu Ray isn't catching on? Because I (like many others) have one player in my house that can play those disks. When I get a movie, I often see the DVD sitting right next to the Blu Ray, and I think "well, DVD looks good enough, it's $10 cheaper, and I can play it in any room in my house and on the road in my computer." The Blu Ray sits on the shelf while the DVD goes home with me. It's only by making tech ubiquitous and easy to use, and by changing the laws to make the content that
          • by MaskedSlacker (911878) on Sunday May 31, 2009 @07:18PM (#28162045)

            Replace DVD with VHS in your post, and Blu-Ray with DVD (and minus the part 'bout the comp) and go back ten years and it would be just as true (or untrue rather).

            Blu-ray "isn't catching on" because the players are still damn expensive, like DVD players were 10 years ago. 10 years from now DVD will be just as replaced as VHS (if not sooner). However it may well not be by Blu-Ray.

            The reality is that HD is little more than novelty (sure, it is a sharper image, but so what? So is the view out my window), and once the novelty wears off the inconveniences of the 13cm plastic disc become obvious--especially compared to on demand internet service.

  • Wiretapping (Score:2, Interesting)

    by Nigel Stepp (446)

    Now if they can only come around on Warrantless Wiretapping [eff.org].

  • Indeed. (Score:5, Insightful)

    by viyh (620825) on Sunday May 31, 2009 @12:13PM (#28158831) Homepage
    It's nice to see things happening the way they are meant to happen. While the DoJ employees are not elected by the people, they are appointed by people who are. They are, in theory, supposed to represent the will and needs of the people, not corporations or lobbyists with money. Hopefully this will open up the debate about rewriting copyright and property laws in the age of information and the internet.
    • Re:Indeed. (Score:5, Insightful)

      by sumdumass (711423) on Sunday May 31, 2009 @12:42PM (#28159043) Journal

      It's nice to see things happening the way they are meant to happen. While the DoJ employees are not elected by the people, they are appointed by people who are.

      Your more or less right here except that the vast majority of DOJ employees don't change jobs when new leaders come in. It's entirely possible that people working for President Carter are still employed at the DOJ and remained employed under different presidents and parties.

      They are, in theory, supposed to represent the will and needs of the people, not corporations or lobbyists with money.

      Here, you are just wrong. The DOJ is supposed to enfore the law period. They don't represent anything but the law as it is written and how courts reconcile that to the constitution. The DOJ can push for an interpretation the administration has laid out if there is shacky grounds but they in no way "reflect the will of the people".

      In fact, the federal government was never indented to address the will of the people directly. The federal government in the US is only supposed to represent the states in matters of state (foreign relations) and matters between the states with a limited few other things specifically written into the constitution. You can see how obvious this is by simply reading the constitution. The senate was originally appointed by the state, the president was/still is appointed by the state, and the house of representative which all tax raises are supposed to originate in was the representation of the people. The idea was so that the people had a say in government not so that government served the people. The federal government serves nothing but the offices they hold. Now don't get me wrong, the office covers the people but they also cover so many other things like corporations which provide jobs, trade between the states and with foreign countries and so on.

      You also need to understand that a: corporations are nothing more then collections of people who invested in a concept but are shielded from it's performance to some extent by their lack of participation in the company. b: Lobbyist are nothing more then people who have familiarity with the congress critters and take points directly to them instead of leaving it to them to figure out on their own. There is nothing wrong with lobbyist because they allow single representation of groups of people with no political clout. Without them, no one's voice will be heard more, nothing will be different, except those groups will have to spend the money directly on getting the congress critters attention some other way instead of giving it to someone who already has their attention.

      • Re:Indeed. (Score:5, Insightful)

        by mmaniaci (1200061) on Sunday May 31, 2009 @01:19PM (#28159329)

        There is nothing wrong with lobbyist because they allow single representation of groups of people with no political clout

        How is that a good thing? The richest get to buy political clout and change the gov and the masses still have no say.

      • by tepples (727027)

        The federal government in the US is only supposed to represent the states in matters of state (foreign relations) and matters between the states with a limited few other things specifically written into the constitution.

        Since the development of rail transport, what isn't a matter between the states?

    • In theory you're right, but remember this is only a brief sent to a judge, it's not a judge's final decision. The judge could read it and still rule the other way.

      Given the entertainment industries strong connections with the Democrats in particular do you think they will just sit back with feet up and say "well played, you got us on that one."? Or do you think it's more likely that since they found out what the brief actually said that they went on the lobbying offensive to get those behind it punished / r
      • by Etrias (1121031)
        In theory you're right, but remember this is only a brief sent to a judge, it's not a judge's final decision. The judge could read it and still rule the other way.

        Please keep in mind that this is a amicus brief requested by SCOTUS, not an independent one filed by interested party. I would say that they would put more weight into this brief if it was requested what the DOJ thought about the legal position here.

        Corporations are known to support whomever is in power. While I don't like the fact that
  • by dominion (3153) on Sunday May 31, 2009 @12:20PM (#28158883) Homepage

    "since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ."

    Sometimes people just need a reminder that there is no grouping of people with less principles than Lawyers. We made the assumption that, since RIAA lawyers were hired to the DOJ, that they would find in favor of the RIAA. But it seems that lawyers are almost always megaphones for who is signing their paycheck.

    And in this situation, it worked out in our favor.

    • by James_Duncan8181 (588316) on Sunday May 31, 2009 @12:25PM (#28158929) Homepage

      "Sometimes people just need a reminder that there is no grouping of people with less principles than Lawyers. We made the assumption that, since RIAA lawyers were hired to the DOJ, that they would find in favor of the RIAA. But it seems that lawyers are almost always megaphones for who is signing their paycheck."

      Mmm. Or people who are doing their best to protect the interests of their clients? A lawyer must make the best arguments available for their client, but the ruling is not something they can be held responsible for. The system of justice works best when both sides present the strongest form of their argument, allowing the issues to be debated by those in the judicial role (who you can hold responsible for their judgments).

      Or would you rather your own counsel failed to advance your best arguments because he personally thought you were guilty?

      • Mmm. Or people who are doing their best to protect the interests of their clients? A lawyer must make the best arguments available for their client, but the ruling is not something they can be held responsible for. The system of justice works best when both sides present the strongest form of their argument, allowing the issues to be debated by those in the judicial role (who you can hold responsible for their judgments).

        Perhaps, but when the RIAA counts on little people being forced to settle because they

      • by selven (1556643) on Sunday May 31, 2009 @01:52PM (#28159607)
        What if the RIAA lawyers are all on our side all along, and they were filling up their positions incompetently just to prevent people who actually want to do damage from doing so?
        • Re: (Score:3, Interesting)

          What if the RIAA lawyers are all on our side all along, and they were filling up their positions incompetently just to prevent people who actually want to do damage from doing so?

          Hmmm. You are one Slashdot member who is not a cynic or skeptic. You're ascribing the highest and noblest of motives to them, looking for the best in your fellow man. I am impressed.

          Perhaps you are right. There is certainly something to be said for that point of view. When one looks at their blunders, it is hard to imagine they were not intentional, now that you mention it.

    • Re: (Score:2, Informative)

      by maharb (1534501)

      Maybe. Lawyers, despite having no morals, are smart enough to know they can't just start handing cases to the RIAA without an appearance of a battle. This is one step in the right direction but there are miles left to walk so to speak. If this pattern continues then we can let our dukes down, but I still think it's too early to tell.

    • Oh, like many experts, they have whatever principles you are willing to fund.

      More seriously, they are the champions in the "battle of chapions" that is a US courtroom. So many, as individuals, have excellent principles which they try to support by the clients they accept. And they can lose their license for not doing their courthouse best for their clients, even if their violation of legal "canons" helps keep a child rapist or Dick Cheney from hurting society as a whole.

    • by sumdumass (711423)

      Can you tell me which lawyers who names are on the brief actually worked for RIAA, MAPP, or have some other connection to them?

      I don't think this paper says anything about the DOJ nor the RIAA lawyers because I can't find one of their names behind the brief submitted. Chances are, the EX RIAA lawyers never saw the brief, it was probably reviewed for accuracy by some other low level lawyers and approved by some mid level management.

    • Re: (Score:2, Informative)

      by 91degrees (207121)
      Lawyers do have principles. One of the most important is to represent their clients. It most likely doesn't matter to them personally all that much which side they're arguing for. Unlike us, most people don't see the right to make copies as an ideological point.

      Lawyers don't make findings. They make arguments for one side, in an incredibly biased manner. Being biased is how the whole adversarial system works. There's another guy arguing against them who is employed to be incredibly biased to the o
    • by nomadic (141991)
      But it seems that lawyers are almost always megaphones for who is signing their paycheck.

      Whoa, stop the presses...you mean lawyers act as advocates for their clients?? That's crazy.
    • by deblau (68023)

      Sometimes people just need a reminder that there is no grouping of people with less principles than Lawyers.

      I'm sure Lawrence Lessig, Eben Moglin, Larry Rosen, and even NYCL would be glad to hear that. Oh wait, you just mean lawyers who fight for people you disagree with?

      • by nomadic (141991)
        I'm sure Lawrence Lessig, Eben Moglin, Larry Rosen, and even NYCL would be glad to hear that.

        As would Abraham Lincoln, Thomas Jefferson and Mahatma Gandhi.
  • by phantomfive (622387) on Sunday May 31, 2009 @12:22PM (#28158907) Journal

    They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."

    Thus demonstrating again why you should never trust a lawyer. Unless you are still paying him, of course. (sorry nycLawyer)

    • by ColdWetDog (752185) on Sunday May 31, 2009 @12:33PM (#28158991) Homepage
      Grrr. This always pops up here. Lawyers are supposed to represent the client's interest. If the client is RIAA, they are supposed to make arguments that support RIAA's goals and aims. If you're client is the Federal Government (and thus, the interests of the 'people'), you are supposed to argue their views.

      What the lawyer actually thinks is correct doesn't have a whole lot of traction here. If the clients arguments or interests are so repugnant to the lawyer that they feel that they can't represent them successfully, they are bound to tell the client, but that's about it. No, it's not perfect, not a great system but it seems to work better than anything else we've come across.

      A lawyer well versed in a particular case dammed well ought to be able to argue both sides of the issue. It's what they do for a living.
      • Sure, but it wouldn't come up nearly as much if lawyers didn't make their own reputation of it. Like the class action suite for silica? [wsj.com] Here is a quote:

        They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."

        Or how about in New Mexico [blogspot.com] where the attorney general seems to give good contracts to those who pay? Or maybe that's just a general politician thing.

        Or how about doctors who are no longer paying for malpractice insurance as a way to ensure against lawsuits? [sun-sentinel.com] Here's a quote from one of those doctors:

        "I have a strong feeling I'll never hear from another attorney again," Rosenbaum said. "Sure, I'm nervous. But I practice carefully. The first thing lawyers do when they have a case is [check] all the doctors involved to see who has how much coverage."

        In theory the law is great: it prevents doctors from m

      • by iggymanz (596061)
        but the common man mostly can't afford them for anything that would take more than a few tens of hours, so they mainly are the tool of the dirt-bags. hence the jokes about major world problem solving always starting with "1. shoot the lawyers". also be mindful most judges and many politicians were lawyers: what rises to the top of the septic tank?
    • They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."

      Thus demonstrating again why you should never trust a lawyer. Unless you are still paying him, of course. (sorry nycLawyer)

      I think the traditional ire against lawyers is better applied to instances where they foment and churn expensive litigation (e.g., chase ambulances)... not where you pay them to voice your position more eloquently and knowledgably than you could. Moreover, it seems here there's an outside chance that the lawyers just might be voicing their own position...

      • I think the traditional ire against lawyers is better applied to instances where they foment and churn expensive litigation (e.g., chase ambulances)...

        You mean, something like what an RIAA lawyer might do?

  • by Mindragon (627249) * on Sunday May 31, 2009 @12:32PM (#28158979) Journal
    NewYorkCountryLawyer said:
    Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism.

    It's way too early on a Sunday morning and/or afternoon for me to ponder and/or grok the in and/or out of the and/or in that sentence.
    • by mjwx (966435)

      NewYorkCountryLawyer said:
      Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism.

      It's way too early on a Sunday morning and/or afternoon for me to ponder and/or grok the in and/or out of the and/or in that sentence.

      It's actually Monday morning here. 12:32 AM on June the 1st, by the time of your post to be exact. At least its a public holiday tomorrow.

  • by erroneus (253617) on Sunday May 31, 2009 @12:44PM (#28159053) Homepage

    So far, at least on the surface, Obama is mostly keeping his hands off the DoJ and letting them do their thing independently. Perhaps it is a misperception on my part. And Obama seems to be at least trying to be his own president. It seems pretty obvious that he has capitulated on quite a few important issues and hasn't had quite the smooth ride he might have expected, but I don't think Obama cares much about the whole copyright thing right now.

  • If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism.

    Yeah right. Like we're expected to believe what you think about slashdot's opinion. You know, it's summaries like this that prove we can't expect much change either from the government OR slashdot...

    PS: For the HUMOR impaired, the above was meant to be a skeptical, cynical comment. But THIS bit is actually sarcas

    • Re:Oh really? (Score:4, Insightful)

      by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Sunday May 31, 2009 @01:23PM (#28159359) Homepage Journal

      If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism.

      Yeah right. Like we're expected to believe what you think about slashdot's opinion. You know, it's summaries like this that prove we can't expect much change either from the government OR slashdot... PS: For the HUMOR impaired, the above was meant to be a skeptical, cynical comment. But THIS bit is actually sarcasm.

      I am "humor impaired", and you had me there.

      But seriously, the comments to my story so far demonstrate that this welcome bit of good news does nothing at all to dampen the raging cynicism and skepticism which seem to be the prevailing winds of Slashdot.

  • Just curious why you feel it's necessary to link the PDF in via a frame with some other stuff in the "sidebar" I could care less about.

    Here's a direct link to the PDF:

    http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/cartoonnetwork_csc_090500AmicusCuriaeBriefOfUS.pdf [beckermanlegal.com]

    • Just curious why you feel it's necessary to link the PDF in via a frame with some other stuff in the "sidebar" I could care less about.

      Just trying to make a dollar or two. Sorry. I keep thinking that people who support my work would try to help me out by buying a product or signing up for something through my affiliate ads, but it hasn't really worked out that way.

      • by Todd Knarr (15451)

        I for one don't mind the links going to your pages with the frames and all.

        As for the advertising, I think the problem is that for me at least it's just noise to be filtered out. If I'm interested in something, odds are I've already found where to buy it using Google so the ads aren't interesting. If I'm not already interested in what's being advertised, most likely the ad won't interest me and I'll ignore it. And if the ad does catch my eye, there's a major problem with it: the ad network. There's generall

  • by petrus4 (213815) on Sunday May 31, 2009 @01:23PM (#28159351) Homepage Journal

    I was initially skeptical about the alleged, lauded virtue of Barrack Obama, but the more I see of his actions, the more I'm forced to concede that I was wrong, and that in this case, water genuinely has flowed uphill, to use that analogy.

    Obama's level of integrity is genuinely intimidating, for the simple reason that an American President is, at this point in history, expected to be a thoroughly amoral and corrupt human being. That he isn't, is rightfully seen almost as a violation of physical law. Bush's degree of evil had almost become reassuring, purely because of its' level of routine familiarity. When he attempted to do something monstrous, it was entirely expected.

    Even with Bush aside, it is also a paradox when considered in light of the dynamics of political power in general. Reading Machiavelli and virtually every other treatise on the subject, one is left with the overwhelming conclusion that the single greatest prerequisite of political power is amorality, to the extent that it can be said that an individual's degree of political power will be directly proportional to their level of amorality.

    Given this, Dick Cheney is perhaps a more likely example of who we would ordinarily expect to hold the office of President, morally speaking, than Obama. Cheney is, according to virtually every depiction of him, a consciously, willingly, and indeed enthusiastically evil individual. He is, therefore, far more consistent, both from study of political theory in general, and observation of American political history in particular, with the type of individual who I would expect to hold the office of the Presidency.

    It is said that within a democracy, a people get the leader they deserve. I'm not entirely sure what Americans have done recently to deserve a leader with Obama's comparitive level of decency, especially given that Bush was so far to the opposite, but even for us outside America, Obama's integrity is certainly very welcome.

    It will be fascinating to observe just how far outside of the established, conventional rules Obama is permitted to go.

    • It is said that within a democracy, a people get the leader they deserve. I'm not entirely sure what Americans have done recently to deserve a leader with Obama's compar[a]tive level of decency, especially given that Bush was so far to the opposite, but even for us outside America, Obama's integrity is certainly very welcome.

      Well I'm not ready to genuflect just yet. But this was a welcome bit of news.

    • by cheros (223479) on Sunday May 31, 2009 @02:45PM (#28160055)

      an American President is, at this point in history, expected to be a thoroughly amoral and corrupt human being

      I find it thoroughly depressing that that seems to be the prevailing opinion. That in itself just shows what a tremendous amount of damage Bush has not only caused to the IMAGE of the US, but to the US itself. Having said that, they had willing assistance from the UK New Labour government in this, so I hope the current "it was within the rules" expense claim abusers get chucked out on their ears soon.

      I've seen it in the UK, no sooner did they step through the doors of No10, out came the efforts to switch off as many controls as they could get away with so they could fill their pockets as quickly as possible. Regulators? Take away their power. Competent people in government? Lose them to consultancies, then re-employ them and pretend that's the same thing (try saying "no" as a consultant if you have a family). Protests? Tarnish those who do, and bury it under spin. The worrying thing is that it has at both sides of the ocean worked so well that it has taken TWO terms for the damage to show up. And then they vanish, publishing "memoirs", hit the speaking circuit or, in the case of Blair, apparently go and work for the people who stand to profit from the collapse. No, I don't believe in coincidences.

      The main problem with such an attitude is that it flows downwards. As soon as industry sees this happening, they realise it's time to do the same because farming the economy to death MUST lead to a crash. so everyone was trousering wadfulls of cash while the going was good. Screw the man in the street, he's there to take the hit when it goes wrong. So it has, and he does.

      If Obama is tring to do The Right Thing (and so far, the signs are good even though he has to do this very slowly) he must alreday have discovered that this will take more than the time he has, even assuming he can serve TWO tems. I'm going to be very interested in what he does for long term planning.

  • I find it interesting that our Supreme Court Nominee was not part of this ruling. In fact, the 2nd circuit is making a lot of important rulings - they also established legal precedent in the Google Adwords trademark violation case, and some stuff about trademarks and internet before that. But I don't see her opinion on -any- of them. Maybe we should appoint the judge whose opinion this is?

  • The Supreme Court was thinking about overturning an important and just ruling but decided to just maintain the status quo. Oooooh, I suddenly feel so optimistic.
  • by sirwired (27582) on Sunday May 31, 2009 @02:20PM (#28159833)

    I think it is fairly obvious what approach the Obama DoJ is going to take. In return for coming down hard on those that distribute pirated content (it is indeed a crime, if not one that deserves much punishment), the DoJ is going to make sure it is only going after actual pirates instead of consumers trying to use content they have already paid for.

    While this is not an ideal situation (there are a LOT of things the DoJ could be doing other than chasing after torrent trackers), it's better the previous situation, where the xxAA gets whatever they ask for.

    SirWired

  • Pushing Buttons? (Score:3, Interesting)

    by pgn674 (995941) on Sunday May 31, 2009 @02:30PM (#28159907) Homepage
    I RTF Brief. It was a good read. There is one issue that was mentioned and claimed to be explored, but I don't understand the reasoning.

    In the last paragraph of discussion B.3.A and in foot note 10, on page 19, they say that the customer is the only one that makes the copy through RS-DVR, with some help from the respondents (the cable company). In fact, through out the brief, it is emphasized that who makes the copy is very important, and in this case it is always the customer that does.

    But, this paragraph and foot note strikes me. It says that it is possible that two parties at once both be the "who" and who makes a copy. Like "if one person selects the programs or documents to be copied, but hires someone else to push the buttons used to operate the relevant copying machine, it is possible that both could be held liable as direct infringes for any copyright violations that their conduct entails." The brief argues that this doesn't happen; the customer makes the selection and pushes the button.

    Why is pushing the button important? If a customer makes a selection but no button is pushed, then nothing has happened. If a company pushes a button but no selection was made before then, then again nothing happens. The customer is always the one that makes the selection; pushing a button is the extension of that selection. Hmm, maybe it is important, actually.

    But, in the case of RS-DVR, the company is pushing some buttons of several kinds. The customer can make a decision, then press a button on their remote. This button press is sent to the RS-DVR server at the company's location, and the server presses it's own internal buttons to set the recording time and channel, and then presses some more when the right time comes. If these internal server buttons were not pressed, then nothing would happen. To me, they look just as important to the process as the remote control.

    Hmm, maybe the server's internal buttons usage are considered a service, while the remote control's buttons usage is not?

    I think the only thing that's clear here is that I'm not familiar enough with this aspect of law to figure it out conclusively myself.
  • This way the ruling is limited to the Second Court of Appeals district only, and can be re-litigated in more friendly climes - like the Ninth Circuit Court, or Marshall, TX. If the Supreme Court agreed with the lower court then this ruling would hold throughout the country. Why else tell the Supreme Court that "This isn't important enough for you to bother with. Leave it to the other cable companies in the other areas of the country to work this all out."

    After all, when have we seen the MPAA/RIAA litiga
  • by BillX (307153) on Monday June 01, 2009 @12:20AM (#28164153) Homepage
    It took a while to RTFAC, but one of the major "decisions" I drew away from this was that the brief recommends against taking up the case because it is not a good test case, not because they believe the **AAs are twisting arms. Specifically, the fact that the parties waived claims for contributory infringement and fair use, respectively, was an important factor in the decision. FTFAC:

    "Network-based technologies for copying and replaying television programming raise potentially significant questions, but this case does not provide a suitable occasion for this Court to address them. The Second Circuit is the first appellate court to consider the copyright implications of network-based analogues to VCRs and settop DVRs, and its decision does not conflict with any decision of this Court or another court of appeals. The partiesâ(TM) stipulations, moreover, have removed two critical issuesâ"contributory infringement and fair useâ" from this case. That artificial truncation of the possible grounds for decision would make this case an unsuitable vehicle for clarifying the proper application of copyright principles to technologies like the one at issue here."

    It sounds as though they are expecting this case to essentially repeat for an arbitrary future combination IP holder and cable company, without the peculiar waivers of contributory infringement claims and fair-use counterclaims, and are simply waiting for that no-holds-barred case to be settled by a lower court. The extreme quibbling over (to quote the brief) âoewhoâ would âoemakeâ the copies that would be stored does not inspire my confidence, as all this decides is whether the alleged infringement should be considered as direct or contributory. The cynic in me says that a pro-RIAA author would rather the latter be the ultimate test case since the bar for arguing secondary/contributory infringement is much lower. (You stored arbitrary data which included the pointer to a pointer to data that a 3rd-party chose to infringe? You're a contributory infringer!)

    • one of the major "decisions" I drew away from this was that the brief recommends against taking up the case because it is not a good test case

      Yes that was one of the reasons given; but the brief also, point by point, refutes each and every substantive copyright law argument the plaintiffs' lawyers (including those now at DOJ) had made.

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