Obama DoJ Goes Against Film Companies 321
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."
Gov representing reality is rare (Score:1, Interesting)
For every time the gov deals with external reality, there are 100s of instances of decisions and actions based on some ideology or political interest.
This is why big government inevitably produces a low economic growth rate, eventually leading to the collapse of the society.
The only limit to the growth of gov is that collapse of the economic-social-political system.
Wiretapping (Score:2, Interesting)
Now if they can only come around on Warrantless Wiretapping [eff.org].
Re:Please let this be a trend (Score:5, Interesting)
Not quite as surprising as everyone thinks (Score:5, Interesting)
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.
Re:Wiretapping (Score:5, Interesting)
Why can't we nail the Govt for Copyright Infringement of our audio phone works?
Re:Gov representing reality is rare (Score:5, Interesting)
No, blaming the market rather then those who abused the market is like blaming a perfectly good road to cover up for a drivers incompetence.
Well I suppose it is those who took advantage of the lack of regulation.
Like regulation prevented the GFC from becoming a major issue in Australia? Banks being forced by the government to maintain a certain percentage of liquidity to prevent them running entirely on credit, or interest rates that reflected the true growth of the market?
Well, empirical evidence suggests otherwise, the AUD is at .78 USD, it was about this during Australia mining boom. +1 for Australia's overly regulated banking system (none of whom have required bailing out BTW).
B-b-b-but it I'm able to sell a predatory loan shouldn't I be entitled to profit on it.
The blame here lies not on those who were sold the bad loans but on those who were selling the bad loans, this goes all the way back to the government whom would not allow interest rates to reveal the true state of the economy although it also includes those bankers who knew better but did not act against it as there was profit to be made in the mean time.
Remember that the economy relies upon those who are not experts at economics as much as the car industry relies upon those of us who cannot strip a six cylinder car engine blindfolded.
So, you're saying that regulation gives people more time to decide weather a large debt is feasable or not. But isnt regulation a bad thing(TM).
Re:Gov representing reality is rare (Score:4, Interesting)
I suggest you go look up the definition, history, and maybe some examples of fascism, having somebody help you when you stumble over the hard words. Because calling the Republicans "fascists" (at least, while giving the "hey GM CEO, you be fired now, k?" Democrats a pass) is pretty silly.
An accusation made against one party is typically defended by pointing out that the other party is no better. I have a way of neatly avoiding such bickering. For all practical purposes, whether this was intentional or accidental, the USA has one party that happens to be composed of two factions. They're both rotten bastards and the continued dominance of politics by the Democrats and the Republicans guarantees that nothing really changes. They're both leading us to a fascist nanny-state or whatever you care to call it and they'll blame each other for it the whole time that they are taking us there. For those who don't want to live in a modern police state, this is nothing to celebrate.
I mean, this news is good and it's a step in the right direction, but it's a tiny little baby-step that's barely even measurable compared to all of the other things that need to change if the USA is going to once again become a sustainable country (financially and otherwise) that really celebrates freedom instead of paying lip service to it. A good start would be to implement the single transferrable vote, this would go a long way towards breaking the two-party duopoly and allowing more third parties to actually stand any chance of winning elections (or at least, to lose elections because the people know about them and disagree with them and not because a duopoly has made them obscure).
Pretty big 2nd circuit opinion (Score:3, Interesting)
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?
Re:If a laywer is any good... (Score:5, Interesting)
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.
Re:Tricky things, lawyers. (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.
It's obvious what the approach is going to be (Score:3, Interesting)
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)
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.
Re:Tactical Deception (Score:4, Interesting)
Re:If a laywer is any good... (Score:3, Interesting)
After Biden's Hollywood Speech, I doubt it. More likely this is a circuitious maneuver to benefit the MAFIAA in the long run by surrendering tactical ground now.
Re:Please let this be a trend (Score:4, Interesting)
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.
Re:Afro-American Racism Against Whites & Asian (Score:2, Interesting)
... you cretinous redneck!!
This word apparently means something different to you than it does to me. Not easy to find digital sources for this, but, from a GlobalSecurity.org article [globalsecurity.org]:
That's from the Battle of Blair Mountain [wikipedia.org], where those "rednecks" fought thugs--and some died--for the right to unionize.
Not saying I'm going to write a curse-laden response to you, but... heads up.
Victory? They punted... (Score:3, Interesting)
"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!)
Worked on Hillary (Score:4, Interesting)
Maybe so. Dick Morris argues that this is exactly how he's neutralized Hillary Clinton:
http://thehill.com/dick-morris/the-incredible-shrinking-clintons-2009-05-26.html [thehill.com]