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.
Seriously, what the hell? (Score:5, Interesting)
This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on. There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.
Is the defendent screwed? (Score:3, Interesting)
Isn't the defendant totally screwed since he already admitted guilt. If so, how can the defense allow the case to be lost before trial.
Only option left (Score:5, Interesting)
The **AAs have gone for the nuke option so the defense should as well. Toss the lawyers (they would risk disbarment) and go for a Jury Nullification. At this point there isn't much to lose, play the trial out by the book from here and the conclusion is predetermined. But if the defense goes for a nullification there is a very non-zero chance of pulling it off. Or getting a mistrial declared.
Re:Is the defendent screwed? (Score:2, Interesting)
Re:gosh (Score:3, Interesting)
It's closer to having a front yard give-away of paintings that you copied off of work you recently saw at an exhibit for current artists.
Re:There's an answer to this... (Score:3, Interesting)
Re:gosh (Score:3, Interesting)
Re:Maybe the law is wrong then (Score:5, Interesting)
Lawyers (and judges) these days have literally zero concept of a law being "wrong". They are trained and selected through years of education to bring cases to an equitable resolution. No party actually wins or loses. They settle. The lawyers win.
They have evolved to this point through natural selection and their own best interests.
Laws are no longer scrutinized for logical consistency or correctness or even adherence to any type of higher law. They are merely accepted as the will of the legislature and added to the growing pile of regulations to be forced on the plebes.
The old stereotypes of Perry Mason or Matlock getting at the truth of a legal question are long gone. There is no more truth. There is only a vast gray area in which to bring both parties to some type of agreement. And if they can't agree, well then just rig the system by disallowing any argument that might lead to resolution of the conflict at hand.
Listen to this judge. Even allowing the defendant to utter such a phrase as "fair use" to a jury would be somehow unfair to the Congress, who after all worked very hard to try to make a fair Copyright law. We wouldn't want to offend them with the possibility that twelve citizens might find their laws to be fundamentally flawed, through anything resembling a fair trial or due process or anything.
Our latest Supreme Court nominee didn't even like Perry Mason. She preferred the prosecutor who continually brought half-assed wrongful prosecutions of innocent citizens before the court and lost every week. She probably felt sorry for him. She probably went into law in order to bring some equity to the system, and give him a chance to win more often. Surely the fact that he lost every time meant that there was some inherent flaw in the system, right? Wasn't he being discriminated against somehow?
Re:Only option left (Score:3, Interesting)
> If a juror even mentions jury nullification, they'll be off the bench in no time flat.
There isn't much a corrupt judge can do to stop the defendant from doing it. Lawyers can be threatened with everything up to and including disbarment and even jail. But the defendant in this case is facing certain ruin, what can a Judge do that is worse than that? And once the jury is locked in to deliberate there isn't much of a way to control what they do from that point on.
Jury nullification is dangerous, yes. And the **AA's even have a certain rightness to their cause. But multi-million dollar verdicts for sharing files vs the slap on the wrist the justice system hands out for serious violent crimes is silly. So if there were ever a time to go for nullification this is probably it.
Re:gosh (Score:3, Interesting)
My friend, what is that planet you live on? Do you got the money to change things? Can you compete with the Monsantos, RIAAs and Microsofts of this world?
Laws are useless in the context that you are applying them. Good people don't need them, and bad people ignore them anyway.
They were once rules to decide, what a group of people decided as hurting one of them. Punishment is, to not belong to the group anymore.
But nowadays, they are bullshit, like "don't walk across the road, when it's red" or "don't copy that file, because you have to buy it, even if you can't pay anyway, even if it hurts nobody to pay, and even if the original artist gets nothing from the money anyway, but all of it goes to a criminal cartel who buys politicians and terrorizes people for money."
The point is: Laws are not absolute. They are not always correct. They are not the same for everyone. Groups make compromises. But the RIAA makes none. They want to enforce their rules upon us, for their profit, hurting us all in the process, *including* the artists.
So many people blindly stand on the sidewalk, in the middle of the night, with no car in sight, waiting for it to become green. Because they are trained to not think for themselves. Trained to not understand the intention of the law, but follow its wording blindly. Even if it results in the opposite of the original intention.
And there we are at the core: The actions of the RIAA are the very opposite of what the copyright laws once meant to be. They existed, to make something more fair.
Do you think this is more fair? Do you think this is what was intended? Do. You. Actually. Think. At. All?
And this is why we ignore this. Not because we are against the law. But because we are against what they made out of it. And because we think that this is not what the law was meant to mean. So it's not the law. It is an illegal misuse of the law, to hurt us all. It is in fact something, that to prevent, laws were invented for.
Re:Judges over-ruling law... (Score:5, Interesting)
Just so it's clear, I haven't seen anything in recent years that comes close to the level of justification necessary to violate many of those rights. The forays into that territory made in the name of the "war on terror" are, in my opinion, completely unjustified. But that doesn't mean that we should slide into magical thinking about the nature of rights and laws. Legal positivism, at least in some of its forms, isn't the bogeyman you're implying it to be.
Re:gosh (Score:2, Interesting)
Now if you want a real analogy here's one. I copy a CD and put it up for download. This is logically the same as legally being in possession of a work of art owned by someone else (say a museum curator and someone's having an exhibit that is not owned by the museum). I then put that piece of art on the outside of the building and walk away.
Now someone else comes along and makes a copy of that painting. This violates the copyright of the owner of the painting (which legally grants him a monopoly on that representation of that painting). The person walks away and the curator comes back and puts the painting back on the wall in the museum.
Now what crimes have been committed? Well copyright violation is one as the painting has indeed been copied against the will of it's painter. The person who copied it however is the one who committed that crime. Another you can say is 'aiding and abetting copyright violation' which has turned into our new and wonderful term 'making available' because there's actually no laws that I'm aware of that prohibit aiding a non-criminal act (copyright is civil not criminal) being actionable... but IANAL so maybe someone here knows of one.
Re:gosh (Score:3, Interesting)
Hi. I am sure you meant to say that file sharing of copyrighted works is illegal. File sharing itself is NOT illegal (in spite of what the RIAA/MPAA want everyone to think). It IS illegal to share copyrighted material.
No, for example it's perfectly legal to share the Linux source code which is copyrighted.
It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal.
Copyright could probably be more accurately termed "censorship-right", the copyright holder has authority to censor people from communicating whatever it is they hold copyright to.
Re:Judges over-ruling law... (Score:4, Interesting)
For historical context, the "fire in a crowded theater" quote comes from a case where the court ruled that it is OK to prohibit dissemination of anti-war propaganda during wartime. What "fire in a crowded theater" means is "we can prohibit political speech we disagree with." It was not exactly a shining moment in the history of this country.
Re:gosh (Score:1, Interesting)
then you should change the copyright law to reduce the amount that can be recovered for statutory damages, from $100,000 per infringement, to say $10 (or something that reflects current market value).
But speaking as an artist, I really wish my gear and equipment would also cost proportional to the damages I can recover - i.e., Fender guitar cost $20 instead of $350; or my gf's camera cost $50 instead of $5,000.
Personally, I think .99 music is anti-competitive for those of us who are trying to make it in the world - it's secondary or tertiary income for those who can sustain .99 cent price point. It's pocket change.
Re:Good for him (Score:2, Interesting)
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
"
The factors for fair use "include" those four criteria. This states in plain English that their are more factors that should be considered beyond these four. At least, that is what the defense was arguing.
appeal (Score:2, Interesting)
One might suppose the judge is just speeding the process up for appeal, so that the case can be moved up to a court with competence on the Constitutionality.
Re:two problems (Score:4, Interesting)
1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.
It is, as a matter of court procedure, if he's going to rule it inapplicable anyway. That's why both parties must provide briefs of their arguments before arguments are made.
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.
In many jurisdictions, this is not at all the case.
Either the judge is braindead, or he's setting the defense up for an appeal.
I know it's hard for Slashdot Aspie-wannabes to consider, but maybe he's smarter and more qualified than you are.
Re:Before the arguments start? (Score:5, Interesting)
Yes I do! I know that this is not expected here on Slashdot, so I'm OK with your reaction. But I really do.
There is a blog in German, where the whole thing was tracked, analyzed, the references were given, etc, etc. I read the stuff from the Pirate Bay site too.
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.
They were cold hard facts. That everybody knew about. Including those people who had to decide if the trial was to be redone.
According to Swedish law, obviously a prejudice of the judge means a retrial. We're not in the dark ages after all!
But then it was stated that it was decided, that the judge was not prejudiced. An obvious and blatant lie. To protect his ass. Something that only can happen, when someone has powerful friends with a specific agenda.
But I recommend reading it all up yourself. For a trial, the whole thing is pretty funny and exciting. (Eg the story in the local pizza restaurant, etc.)
Don't take it from me. Inform yourself, and judge for yourself.
If you *then* don't come to the same conclusion, I offer you a pizza, a beer, and a place to sleep for a party weekend here in cologne. ^^
Re:gosh (Score:4, Interesting)
Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.
No theory of fair use will let you hand out full copies of a work to any random stranger, and without uploaders there wouldn't be any file sharing. There's plenty excuses to get away with it, but little to no doubt about the law. And apart from the "limited times" that may be in doubt, it must be one of the clearest grants of power in the constitution. Based on download counts I'm fairly sure most file sharing falls under the original terms anyway. I might not agree with the law, but it's basically pitch black, if you think it's gray you'd better clean your glasses.
*Beautiful* phrasing of music business model (Score:3, Interesting)
I must say this is about the best summary of quite a few business changes since the Internet came along:
"What happens when you're selling bottled water in the desert and it starts to rain." - Nesson.
Absolutely awesome metaphor of losing a monopoly..
Re:Before the arguments start? (Score:3, Interesting)
Well, I did follow the whole spectrial and read the court transcripts, legal analysis and conviction in Swedish... I think the one sentence summary is "These files were found through TPB, thus they're guilty of contributing to copyright infringement". They spent forever describing what bittorrent was, but really no discussion on degree of contribution. You might just as well have substituted TPB with Google, or "The murderer bought the knife here, thus the owner is an accessory to murder." I could have tolerated it if they'd discussed what the defendants knew or ought to have known and degree of blindness in operating a search engine / tracker service, but it just wasn't there. To me it smelled very much like "We found a line of reasoning to hang them by, let's just ignore the issues raised by the defense." Bought? No. Biased? Yes. I think they had decided to convict long before the trial was over, or perhaps even started. I just recognize the tunnel vision in their reasoning.
Re:There's an answer to this... (Score:3, Interesting)
And just to help you all to do so:
Magnatune.com [magnatune.com]
Jamendo.com [jamendo.com]
LegalTorrents.com [legaltorrents.com]
Archive.org [archive.org]
If anyone has any other link, feel free to post them as well.
Re:Before the arguments start? (Score:2, Interesting)
Talk for your own country.
That's actually what kinda pisses me off, when people say "it's this or that way with copyright". No it's not. At least in some place on this planet, you can rest assured that it is not this way.
Please add what country you're refering to. Else I'll say "hey, uploading is legal too" and simply omit the country I'm talking about. No, I don't know a country where it is. But I'm fairly sure there is one. Despite the pressure that went into the attempt to make a unified, biased copyright, there are still very few countries that can claim the have the same regulations for copyright. Sometimes the differences are subtle, sometimes they are huge, but you can NOT apply your knowledge of the law, as correct as it may be, to any other country.
Re:Before the arguments start? (Score:3, Interesting)
You might be thinking of Jefferson. He thought that it should be a feature of government that a new constitution be written, not every 200 years, but every nineteen or twenty, so that each new generation could best tailor the government to its needs
It's very easy to claim, with the various amendments, numerous conflicting laws, and general disregard for the Constitution by all three branches of government, that we've been doing exactly that.
Maybe just.. not as structured.
Re:The stupid and the lazy (Score:4, Interesting)
Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.
I hate this argument, especially from people on slashdot who supposedely should know better. It's the same kind of broken logic that is used to motivate huge fines. Each user in a p2p network will (on average) upload the same amount of data as he or she downloads. That's because a p2p system doesn't magically create or destroy bytes. So if you want to put a monetary value on the actions of a p2p user you will find that the actual damage is something along the line of the value of the software he has downloaded. The participation in the p2p net does not significantly increate the damage he can do. It doesn't matter if it's 2 members in the net or 15000.
Re:The stupid and the lazy (Score:2, Interesting)
I agree that a fair use defence sounds dubious, but he didn't "upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets."
And the point is that should be up to the jury to decide. What's the point of "trial by jury" if a judge is allowed to make up his mind on the case, before the trial has even started?!