Fair Use Defense Dismissed In SONY V. Tenenbaum 517
Several readers sent us updates from the Boston courtroom where, mere hours before the start of trial, a federal judge ruled out fair use as a defense. Wired writes that "the outcome is already shaping up to resemble the only other file sharing trial," in which the RIAA got a $1.92M judgement against Jammie Thomas-Rassert. The defendant, Joel Tenenbaum, has already essentially admitted to sharing music files, and the entire defense put together by Harvard Prof. Charles Nesson and his students turned on the question of fair use. The judge wrote that the proposed defense would be "so broad it would swallow the copyright protections that Congress has created." Jury selection is complete and opening arguments will begin tomorrow morning. Here is the Twitter feed organized by Prof. Nesson's law students.
Before the arguments start? (Score:5, Insightful)
I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning. Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.
This seems like another bought off or pressured case.
gosh (Score:5, Insightful)
Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.
If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.
Saw this coming (Score:2, Insightful)
What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers. I certainly don't support the RIAA in their war on file sharing, and 1.92M is absurd, but this was a weak defense from the outset. I hope they come up with something better. Its frustrating to watch a fight in which both sides are using only the most inapplicable and irrational arguments available.
Bitching and moaning. (Score:5, Insightful)
Sometimes the Judge needs to set the bar at a different level. Even if it is not in our sides favor. Fair Use Defense is very loose set of rules with a huge gray area, and would really need a higher court to mark such lines. And the Time and effort to prove fair use would be long and laborious and only give a small advantage to the case. We really need to debate more concrete issues. If we loose then we can try for a higher court. Who may be more willing to attempt to draw the fair use line. However if that line is drawn it may not be to our favor as well.
Re:gosh (Score:4, Insightful)
There's an answer to this... (Score:5, Insightful)
...don't use their stuff.
Seriously. If you don't like what you're seeing. Don't buy it. Don't share it.
Hell...don't listen to it wherever possible.
There's enough cool music from indies that have no connections whatsoever with RIAA that you can satisfy your musical tastes in most cases without making deals with the devil.
If you do that, they won't have your money.
If you do that, they won't have a leg to stand on to come after you.
Opt.
Out.
You're customers, not consumers- and if you don't like what you're seeing, you need to stop buying. If you're not buying and using, you're consuming, but not paying- which is playing the game wholly by their rules and you will eventually lose.
Maybe the law is wrong then (Score:4, Insightful)
If
then maybe the law, written by mortals, is wrong. It's not like the defense goes against the laws of nature and can't possibly be right.
Re:Before the arguments start? (Score:2, Insightful)
Fair Use is an important and necessary defence against claims of copyright infringement when the copying is done for legitimate purposes of commentary, satire, and/or academic analysis. It shouldn't be cheapened and undermined like this. Self-serving consumer-distributors who try to use "Fair Use" it to justify blatant copying-in-the-form-of-free-mass-distribution deserve to have their intellecually contrived rationales thrown out of court. Juries aren't supposed to rewrite legislation, so a defense argument that asks them to legislate from the jury box and create new exceptions to copyright out of thin air, should certainly be denied a hearing in court.
Judges over-ruling law... (Score:4, Insightful)
Actually judges can (and should) over-rule the law. The judiciary exists as a check on both the executive in the application of the laws as written, and on the legislature in the drafting of laws that are in accord with constitutions and with individual rights.
If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.
As an aside, one of the more telling exchanges in the recent hearings for Judge Sotomayor was when the new Senator Franken naively asked her whether individuals have a free-speech right to unfiltered internet access [youtube.com]. Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress. This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system within the US and has led directly to the recent wholesale approval of human rights violations that we have seen in this country.
Interpreting individual rights in deference to acts of Congress or to claimed executive privileges has neutered the concept of individual freedom and human rights in the US, in cases involving everything from individual property seized by governments for the benefit of private developers, to the war on drugs, gun control, illegal wiretapping and habeas corpus violations of US citizens. We have reached the point that now not only do we have judges ignoring rights enumerated in the Constitution which they are sworn to uphold, but also ordering defendants not to defend themselves on the basis of these rights and denying them due process as well!
The judiciary as an enforcement arm of the sovereign was a notion we as a country should have cast aside with the Declaration of Independence. The fact that we have not is prima facie evidence of a need for the tree of liberty to be again refreshed in this country.
Re:gosh (Score:3, Insightful)
Re:gosh (Score:2, Insightful)
It's against the law to commit murder by stabbing someone to death. It's against the law to aid somebody else breaking the law. Knives, therefore, are illegal. See the flaw? File sharing is not inherently bad. Using it to infringe upon copyrights is.
Polarization comes from attacking one's rights (Score:5, Insightful)
In previous copyright infringement cases in the US and abroad things just aren't that simple. American movie studios tried to argue that the VCR was helping people commit copyright infringement. Prior to The Pirate Bay's trial, The Pirate Bay's servers were stolen in what The Pirate Bay maintains was a joint effort of US government (at the behest of the American movie makers) and the Swedish government. This got Swedes riled, as I understand it, because there's no good reason why Swedes should have to satisfy American movie corporations in their copyright regime (should they choose to have a copyright regime at all). The RIAA is not to be trusted in court. Their history includes threatening the wrong people such as the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats. In 2007, the MPAA committed copyright infringement in their GNU/Linux distribution aimed at making university IT personnel spies on behalf of the MPAA. The MPAA famously illicitly copied the documentary "This Movie Not Yet Rated", which was critical of the MPAA on multiple grounds, and tried to pass their illegal copying as though it were acceptable in the process of issuing a rating for the movie.
People are polarized about this issue because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.
Re:Before the arguments start? (Score:2, Insightful)
Re:gosh (Score:5, Insightful)
The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".
Re:Before the arguments start? (Score:1, Insightful)
However, if that person took my freely-given items then took them into another state, should I be at fault?
I'll remember your logic the next time I want to buy a firearm that's legal in PA but illegal in my home state of NY. What's the worst that could happen?
Nesson Screwed His Client (Score:3, Insightful)
Pure and simple, Nesson has totally screwed over his client in a big way here. I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.
Unless he's just using the case to advance an agenda and will pay the judgement out of his own pocket, that is. In which case, fine, Tannembaum is just a proxy for Nesson to have standing to argue in court.
But if he chunks this case and leaves the defendant holding the bag, he's lower than even the lowest bottom-sucker.
A foolish defense (Score:5, Insightful)
Of course, the other obvious approach is to have Congress rewrite the statute to properly differentiate between a bootlegging operation with thousands of dollars in profit with counterfeit DVDs and some poor schmuck trying to get a few Mp3s.
Re:There's an answer to this... (Score:4, Insightful)
Bingo... we have a winner.. (Score:2, Insightful)
There will never be a law change where you can steal someones work, distribute it to the world and not face repercussions unless it is specifically allowed by the owner.
Maybe a jillion dollars a song is too much to pay for the infraction..ok.. but none-the-less it will always be wrong and there is no other answer.
Get it into your head that as long as you consume this mess you feed these bastards and the system that supports it.
Re:Judges over-ruling law... (Score:5, Insightful)
I was going to mod you up, but then I remembered the nutrient that the tree of liberty thrives upon and became depressed.
Re:Before the arguments start? (Score:3, Insightful)
Oh the judge is just saying that the standards for fair use are very vague and that to use them in a legal system you'd need an entire system to judge weather or not the use was in fact fair, a judgement system if you will. Too bad the US doesn't seem to have one of these at the movement.
Re:Before the arguments start? (Score:4, Insightful)
Indeed juries should not be exposed to the random and shameful arguments of a rogue defense lawyer. Indeed the only proper thing is to have the defense team wear ball gags and point to a given selection of proper phrases and defense strategies that have been pre-screened to apply to their case.
Nothing good has ever come out of it. No cherished ideas in law, such as the idea of truth as a defense for liable and slander, have come out of a novel augment to a judge or jury.
Comment removed (Score:4, Insightful)
two problems (Score:4, Insightful)
1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.
2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.
Either the judge is braindead, or he's setting the defense up for an appeal.
Re:gosh (Score:5, Insightful)
Re:Before the arguments start? (Score:1, Insightful)
The RIAA's "objection" came in the form of a new pool quietly installed in the judge's backyard, more than likely...
Re:Maybe the law is wrong then (Score:5, Insightful)
Yes, it is. But unless it's against the constitution or some other fundamental rights or is very unreasonable to Congress' intention I don't see how it is the judge's place to change it. Every time I see something about jury nullification or activist judges I'm thinking that's because the US has so royally screwed up the parliamentary system. It's one to nine judges. There's twelve jurors. They're not supposed to override hundreds of millions voting in representatives that again voting in laws, not unless it's really really serious. You don't fix a broken democracy by creating a vigilante oligarchy of judges or killing consistency and fairness by jury nullification. How about giving people a better choice than a coin flip? I can promise you that it works, once they parties to look out both to the left and the right politicians can't afford to make nearly as many unpopular decisions or ignore the public. You might even see the return of real democratic and republican parties, not the parody of themselves that most end up as after a while. Of course, the only ones that could change that are those with everything to lose, now that's what is truly without checks and balances...
Re:gosh (Score:5, Insightful)
That's because nobody has tried a car analogy yet.
It's like giving people free rides in your car then being sued by taxi drivers.
Re:gosh (Score:1, Insightful)
I'll break it down simply.
It is against natural law to restrict the flow of information.
Knowledge/information belongs to society as a whole.
Copyright exists as an incentive for individuals to share knowledge (see the constitution of the united states). They gain exclusive distribution for a limited time in exchange for releasing it to society at the end of that time.
When it never gets released to society, copyright is void. When it is used to restrict access to information, copyright is void. If it is no longer needed for individuals to create and share information with society, it no longer has a reason to exist.
One needs not change the law when the law is illegal. You only need the courts to see it as such.
Re:Before the arguments start? (Score:4, Insightful)
It's the judge's job to set the parameters of the case,
No, it's not.
It's the judges job to maintain order in the courtroom and advise the jury on points of law. It's the jury's job to judge the facts AND the law.
Re:Before the arguments start? (Score:4, Insightful)
So happens in Indiana we have a constitutional clause guaranteeing the right to a genuine jury trial, to wit: "the jury shall have the right to determine the law and the facts." A half-jury trial, where law is decided by the judge, and only facts are left to the jury, is an affront to a free man, and no Hoosier would stand for it.
Unfortunately, there's no such guarantee in the Federal constitution (the meaning of a trial "by Jury" was taken for granted in those days), and it's been steadily eroded by morons like you. The difference between the judge and the jury in this matter, and the reason arguing law before the jury is so important, is that judges are in a position to bribed much more readily than jurors. If the law provides no support for the "new exceptions to copyright", the prosecuting attorney should be able to explain that to the jury as well as the judge, right?
Re:Before the arguments start? (Score:4, Insightful)
Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.
That's great. Care to explain when Boston, Massachusetts became part of Europe?
Re:Before the arguments start? (Score:5, Insightful)
Have you missed the entire Pirate Bay trial fiasco? (Hint: The judge and the people who could throw out the judge, were bought.)
Or maybe, you know, they've actually applied Swedish law as intended. I mean, are you a lawyer in Sweden? Do you know one who did a thorough analysis of the case, with all materials at hand (and not just from hearsay)?
When everyone you disagree with is "bought", you should pause for a moment and think why it start resembling a classic conspiracy theory.
Re:There's an answer to this... (Score:3, Insightful)
No. What he is saying is that the ethical course of action, if you disagree with the RIAA's actions, is to not consume RIAA material. It's not that hard if you choose not to do it; I don't, because frankly I am just not bothered enough by them going after obviously guilty file sharers, but if you had any steel in your spine you'd find some principles and refuse to consume it.
The stupid and the lazy (Score:5, Insightful)
The RIAA's "objection" came in the form of a new pool quietly installed in the judge's backyard, more than likely...
If I may be permitted to misquote Isaac Asimov:
Conspiracy theories are the last refuge of the incompetent.
It really isn't that hard to understand:
Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.
Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.
The geek is cheap and he feeds on the thrill - and that is what lands him in court.
Netflix lists 100,000 DVDs and 2,000 Blu-Ray discs.
For about $15 a month he could build a substantial personal collection which would be of interest to no one so long as it remains within his home network.
Mind you, that's still a five fingered discount, and not Fair Use.
Sony is who put fair usage into precedence! (Score:4, Insightful)
Is no-one else staggered by the irony and hypocrisy of Sony using fair usage against Universal, and then it being disallowed when they are the bully? This judge is an idiot, plain and simple.
Re:Before the arguments start? (Score:4, Insightful)
It was found that the judge was a member of several groups/associations for "copyright protection" and "IP protection". Groups that openly stated the view that you know from the RIAA. And that some RIAA people were members in too. This led to a request to re-do the trial because the judge was obviously prejudiced.
I know that part. No idea about German blogs, but it made a day on Slashdot (obviously).
They were cold hard facts.
The guy's membership in a particular organization was a fact, yes. Whether that organization is indeed RIAA-style evil, and whether this even have any relevance to particular members, was not. If I remember correctly, the judge claimed that his membership there was for the purposes of tracking copyright-related legislation.
While it does sound fishy from a guy blamed that way, I'm not exactly considering TPB guys a shiny beacon of truth, either (after all, they've already lied all the time in the past about how what they're doing is perfectly and unambiguously legal and morally right, but then their defense spun a very different story in the trial).
So we have TPB's word against a judge's word about his motives - neither to be trusted - hence the third party arbitrating this. And they've made a decision based on the facts available to them - again, not to me - about the judge and the organization.
I don't see any "cold hard facts" about this case on the Net at all - only propaganda by RIAA and their sleazy likes on one side, and by TPB and other "wanna all shiny stuff free now" kiddies on the other side, one riddled with clear marketing lies, the other an incomprehensible emotional shitstorm with little meaning but lots of name-calling. So, the only real facts are the guilty verdict and no retrial. I'll stick to those, thank you.
Re:Only option left (Score:3, Insightful)
One has to wonder, though, about a right you enjoy only for as long as you don't try to use it...
Re:Maybe the law is wrong then (Score:2, Insightful)
Is it infringement of copyright to read a story to a class of children? A strict reading of the law may well say it is. It's one of the many cases that the authors of the many pages of copyright law didn't consider. Should a publisher sue a teacher, it's up to the jury to decide whether the law applies to this specific case.
Re:gosh (Score:5, Insightful)
And I think that's due to what the GP pointed out: That we've been educated with the ideal that the good person gives. We grew up in an environment with (more or less) "western" ideals, which in turn are heavily influenced by Christian ideals. And no matter whether you believe in some higher being, the moral code set by that religion(s) had a huge influence in our moral code. Don't lie. Don't steal. Don't murder. But also, be cooperative, be helpful, give when you can and make the life of your peers better.
Not giving when you don't have any kind of disadvantage by giving is seen as an atrocity. If you saw a hungry person and you're full but still have food, would you throw the food away instead? If your neighbor's car does not start and you have a spare battery, could you not lend it to him? Our society would call you names if you didn't, calling you a selfish, miserly Scrooge. Scrooge being a perfect cue, we also have a lot of plays and stories revolving around how the greedy, miserly people only achive happyness once they overcome this and become giving, kind philanthropists.
A law that dictates that you must not give despite not losing anything goes against the moral code we were raised by. You have something that someone else wants, and you can multiply it easily and make him happy. Yet by doing so you're not the good person that you were always told you were when you gave. You'd be a bad person that breaks the law.
The problem with the law isn't so much that it is unjust. The problem is that we feel that it's wrong. It goes against anything we feel morally inclined to do. It's like being told that you must not give a thirsty person water when all you had to do is turn on the faucet.
Re:Before the arguments start? (Score:3, Insightful)
As legal defences go, this was a particularly shabby one. Trying to extend "fair use" to wholesale sharing of songs with any and all strangers on the Internet is a pretty far cry from its definition in law.
What is worse than the copyright argument is his second one: "the idea of imposing law on the global ocean of free bits that has flooded into cyberspace is a gross and harmful over-extension of the power of the state and authority of the law." The Internet isn't the wild wild west. Of course laws should apply there. If the defendant shares songs, of course he's subject to the laws that cover that. Maybe I should read the actual pre-trial brief; I can only hope that the above was taken out of context.
What a terrible trial. My real fear is that some sort of precedent will be set to be used against cases that aren't completely slam-dunk against the defendant as this one is.
Re:The stupid and the lazy (Score:4, Insightful)
To top that all off the DVDs often have root kits (yes it is still done and its not sony) and other non standard DVD "features" to prevent "copying". They often don't work in DVD players. Once it didn't even work in mplayer!
Now the real fun begins when I try and get my money back.
You are right. Its not a right. But then again they don't make it easy to be honest.
Oh yea fair use in the country I live in means I am allowed to "crack" a dvd or whatever to watch/listen on whatever hardware/software I want. As in that is a right i do have. Despite efforts to take that away.
Re:He is guilty, he admited, but... (Score:3, Insightful)
Re:The stupid and the lazy (Score:5, Insightful)
If I may be permitted to misquote Isaac Asimov: Conspiracy theories are the last refuge of the incompetent.
That's one hell of a misquote, and is entirely incorrect. Of course many conspiracy theories are bogus, but there are more than enough to put the lie to your epigram. I guess you're not old enough (or aware enough) to remember Watergate? Or Enron? Or George Ryan? [chicagotribune.com] Not that I believe this particular conspiracy theory, but if this was an elected judge rather than an appointed one, it may be possible.
The correct Asimov quote has Salvor Hardin saying "violence is the last refuge of the incompetent". Lying, twisted facts, and ignoring reality must come in as next to last.
If copyright law wasn't so badly bent and twisted, there would be few pirates.
Re: Why am I seeing 113 sources...? (Score:2, Insightful)
Re:The stupid and the lazy (Score:4, Insightful)
Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.
And this somehow magically allows the RIAA to sue 12 year old girls for hundreds of thousands of dollars?
Re:The stupid and the lazy (Score:3, Insightful)
The excuse that its takes up too much room does not work when considering subtitles.
As for starting my own netflix start up.. will you lend me 1Million?
Re:Before the arguments start? (Score:3, Insightful)
Well, you don't have to "pass" all 4 criteria for it to be fair use. Singular exceptions have overridden the other 3 in the past, and vice versa.