Copyright Scholar Challenges RIAA/DOJ Position 168
NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."
hmm (Score:4, Funny)
That narrows it down...
Re:hmm (Score:5, Informative)
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http://lmgtfy.com/?q=Prof.+Pamela+Samuelson [lmgtfy.com]
Ah see this is why the original poster didn't bother, since you were nice enough to do it for him. Well there is that and /. tradition of only reading the article summary - tradition is sacred, well that's what they tell me.
[/sarcasm]
Deep pocket lobbyists will get you everything (Score:5, Insightful)
How can the media companies been seen as akin to the small guy and the individual consumer the BIG guy?
By Benjamin goggles of course!
Re:Deep pocket lobbyists will get you everything (Score:5, Interesting)
The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy. How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?
They can't. The DOJ's brief was nonsense. For that and a number of other reasons.
Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.
Re:Deep pocket lobbyists will get you everything (Score:4, Insightful)
Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?
(Yes, I know there are other interpretations how that scenario actually plays out; I'm not drinking the Kool-Aid, merely pointing it out.)
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Re:Deep pocket lobbyists will get you everything (Score:5, Informative)
Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?
Yes, but that's part of why it's bullshit. You can't make one person pay for the transgressions of 100 others. That's the canonical definition of "scapegoating", and it has no place in law.
Re:Deep pocket lobbyists will get you everything (Score:5, Informative)
You can't make one person pay for the transgressions of 100 others.
That would be the case if the RIAA/MPAA argued that you are responsible for them downloading.
I think the MPAA/RIAA argument is that you are responsible for 100 counts of uploading (for n=100).
I think that's a reasonable argument: if you do something wrong a hundred times, you should pay for all hundred.
It's just that they don't provide any good evidence. ... And their legal maneuvers are dubious. Go to Ray Beckerman's site for a lawyer's argument as to why.
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Interestingly most torrents you struggle to get people to upload to 1. Doesn't that mean you uploaded 1 copy if your ratio is 1 and your responsible for 1 Copy.
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I don't know of any case law. I don't think the law written in the books take bittorrent into account.
So, my (uneducated: IANAL) guess is that it'll come down to the arguments presented in some case by the two opposing lawyers.
One could argue that the user is guilty of distribtion for each sent chunk; or for each IP address that one or more chunks are sent to; or for each unique (IP address, user-agent string), or (IP, TCP port), or per floor(chunks sent / chunk count of full file), or...
Check what the cou
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A really enterprising lawyer might be able to argue fair use. seriously.
After all if i give you a 0.001% of any file its hardly enough to be a substantial part of the original work and by itself meaningless noise. The only thing is by the nature of bit torrent each "fair use" extract tends to be of a different part of the work.
Common sense says is a ludicrous argument, but the law doesn't deal in common sense.
And if you cannot be punished for the actions of others (and this seems rather shaky to me since If
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Purportedly, the RIAA can identify each of the people who illegally acquired a copy
No, actually they've admitted they can't [blogspot.com].
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In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occured because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so.
Mere speculation of possible future events ha
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Like I said, I'm not promoting the argument, rather merely restating it for the purpose of the discussion. It's not a defensible argument in my opinion, either.
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In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occur[r]ed because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so. Mere speculation of possible future events has no place in these preceding, merely because something may happen does not mean it has. And if something has not taken place then there is no grounds.
Well spoken, scientus.
I.e., RIAA formula for arguing that the statutory damages are appropriate:
1. Bring a lawsuit making unsupported accusations.
2. Ask for outlandish statutory damages.
3. Defend the outlandish statutory damages request by saying (a) maybe this caused us damage and (b) it's necessary to give us outlandish statutory damages to deter other people and (c) don't look at the law, judge, that will only confuse you.
4. ???????
5. Profit!
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Quick! Call a Doctor! This is serious! What if he speaks like this in front of a JUDGE????
I'll just tell him how it would be in Soviet Russia, if Natalie Portman were involved.
One more time... (Score:2)
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What are you using to estimate the damages?
Re:Deep pocket lobbyists will get you everything (Score:5, Insightful)
Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost
According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.
If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest. Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.
Re:Deep pocket lobbyists will get you everything (Score:5, Interesting)
I'm man enough to admit that I have pirated music which I would have paid for otherwise.
I guess I'm not. I will NOT buy CDs or anything on iTunes, but as soon as Amazon started selling MP3s that:
I started purchasing every song in my download folder and that was available through them (I tend to keep my collection pretty clean and delete anything I don't like after a play or two). Yes, that meant a few hundred dollars over the last several months. Yes, that also means there are some songs in there that still aren't legit (they're not available through Amazon).
Amazon, in short, has what I want the way I want it, and I'm quite willing to pay for that. I suspect that, once this silly DRM thing goes away, people will be plenty honest enough to keep the music business from dying. The days of obscene margins on an artificially-scarce product are over, but the death of the industry is not at hand.
IF the labels keep a cool head about it and don't do anything (else) stupid.
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I also started buying more music when Amazon launched their service, and encouraged a lot of my friends to use them over iTunes. But the fact is, people DO pirate music they would have paid for. Even now, with Amazon, that's still true. And that IS a damage.
However much we want to pretend that the pirates are blameless and the RIAA is the only one at fault, it's simply untrue.
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now the various stores are finally being more reasonable in both prices and restrictions so the industry will start to notice a big increase in online sales and finally stop muttering about the issue...
consider that:
- it's crazy to think that virtual (intangible) goods should cost t
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Yes piracy probably siphons away some profit from the artists. However there are lots of music I would NEVER have heard or encountered if I didn't get it from a mate, who got it from some other dude. Hell I have found music on YouTube that I have ended up buying because I
Re:Deep pocket lobbyists will get you everything (Score:4, Funny)
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whats the saying, "teen" is mental state, not a age?
i have seen ladies in their 40's walk around in clothes that would make me wonder about her mental state if she was 18, much less 40...
basically, people are going for "groupthink". the radio, tv, magazine/newspaper is telling them that XYZ is in this year, and so to be in they have to be listening to it, viewing it, wearing it, eating it and most importantly of all, have it on their playlist, body, coffee table when their "friends" drop by...
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If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
If by "physically impossible" you mean all the talented and independent artists who put their stuff on the net for free would be banned: maybe.
If you mean you can't listen to RIAA protected music without paying: the internet is much more powerful than that. Their stranglehold on content is broken. My favorite example: FankaDeli [salatamagazin.com].
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I'm man enough to admit that I have pirated music which I would have paid for otherwise
I applaud your honesty, artor3, and agree that many, if not most, of the downloaders are just rationalizing their copyright infringement. On the other hand, it seems that today's record company setup requires you to buy a whole album at $10-$20 in order to have the 2 or 3 songs you really want.
It might be helpful for both sides of the issue for someone to research whether people are downloading entire albums or only single cuts from the albums. If my suspicions are correct, the RIAA member companies c
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I download albums off TPB and if I like them, I buy them off iTunes. I will not support any type of physical distribution of music - that era is dead and gone and I don't want any music publishers to think otherwise.
Interestingly, digg did an interview with Trent Reznor of NIN recently and it was really intriguing. He had a lot of really insightful and balanced comments regarding the music industry and the direction of online content distribution.
I wish the music publishers would watch it, they might learn
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I download albums off TPB and if I like them, I buy them off iTunes
Even when it costs more? The last few albums I bought were cheaper, including delivery, from Amazon than they were from iTunes. As soon as I got them, I ripped them, but I got a convenient backup copy in case my hard disk dies (again). Since you've already got a copy, then the immediacy argument doesn't hold. I'd rather support physical distribution than overpriced electronic distribution.
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I actually find ITMS prices to be reasonable. Sure, I might find something cheaper if I searched around, but since ITMS has what I'm looking for normally and works conveniently with my iPod shuffle, I use it.
Re:Deep pocket lobbyists will get you everything (Score:5, Insightful)
I don't care if "piracy" (infringement is the word, not piracy) causes anything. Copyright doesn't guarantee profit. It never has. That's what the heck's been missing from this argument for quite some time. Simply making something, copyrighting it and offering it for sale doesn't guarantee a dime, but the RIAA seems to think so, and they are doing their damn level best to be sure they pay or coerce as many people as possible to believe that horseshit too. The RIAA (and other asshole AA's) want you to believe that money is it. It's not that. It's about control. You have the control on where and when you can listen to the music you own (or traded), and it bugs the shit out of them. If they had their way, you would pay for a CD, then if you wanted it on your portable device, you'd pay again. And if you wanted to listen to it in your car, you'd need another CD purchase. But that would require licensing, and it would subject them to liability they don't want (hint, the "cake and eat it too" argument fits here). So, they sell it as a commodity, don't get too up in arms about used sales, and try to squeeze the collective nuts of their customer base who shares their music. Bah. I don't see how the hell people don't just tell them to take a flying leap and let them rot. I really don't. I am as guilty of aiding these dipshits as the next guy (surprise, I buy music), but come on... this is getting ri-goddamned-diculous. I try to limit my purchases to non-RIAA member companies, but it's increasingly a lose-lose situation with recruitment (or indoctrination as the case may be) at an all-time high. It's nauseating as much as it is depressing to think about.
I'd rather see Roseanne Barr naked than have to deal with the RIAA ever again.
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Man, that poor woman. To have her body continually used in such comparisons. Must do wonders for her self-esteem.
Sympathy aside, I think if the RIAA actually started threatening a "Roseanne Barr" attack if I did not buy into their business model, I just might... start paying them again. That is much like torture, in that every man "eventually talks".
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The RIAA, or *AA's is al
Re:Deep pocket lobbyists will get you everything (Score:5, Insightful)
The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.
Of course there is damage, but the courts have rejected the RIAA's theory that each unauthorized download represents a lost sale, in this recent criminal copyright infringement case [blogspot.com].
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So let's say that 1 in 100 downloads is a lost sale. Should the RIAA be forbidden from recouping those losses simply because they can't prove any particular download resulted in a lost sale?
If I fire a hundred bullets down a crowded street, not every one is going to harm someone. And I certainly shouldn't face 100 counts of murder, the way the RIAA seems to think I should. But that doesn't mean I should be free and clear either.
I don't understand what the end game is for slashdotters. Do you really beli
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Endgame is this. I pay 10$/mnth for all music this will bring in around the same the whole music industry gets today.
Movies will be offered streaming with ads either embedded or on the side. There should be an option like with music to remove the ads for 5~10$ a month. This again will not effect revenue for movie companies.
Games will have rich downloadable demos like those on xbox. Full versions will cost more.
Software will be mostly a
Re:Deep pocket lobbyists will get you everything (Score:4, Interesting)
Do you really believe that people shouldn't have to pay for music, movies, video games, software, etc...?
Who is saying that? It's the mechanisms we don't like. Face it, copyright is broken. There is no technically feasible way to stop copying. DRM does not work. And there isn't any social way to stop the sharing either. It's hard enough just trying to figure out whether a particular act of copying is legal or not. I think a good comparison is with so-called morality legislation, where some group attempts to have whatever sort of sex they don't like outlawed. Those sorts of laws plain do not work. Consenting adults can engage in whatever sex they like and no outsider will easily find them out. So it is with copying.
I support compensating artists for their work. I don't support the concept of "copyright" as a means to that end, because copyright has no teeth. It no longer works. It only worked in the past because copying used not to be so easy, requiring much expensive and bulky equipment that could be monitored. Today, sharing files is much, much easier than sex. It's like virtual sex.
But until we get the law caught up with reality, these MAFIAA organizations are cynically using a very favorably puffed up, monopolistic, warped version of copyright that isn't (or wasn't) supported by the actual law, to threaten and extort a very small fraction of the technically guilty public, which is pretty much everyone. Canada put a levy on blank media to settle the grievances of the entertainment industry, but for some reason which is probably the mindless pursuit of every last dollar real or apparent, the industry is still trying to sue individuals, game the legal system, or just outright renege on the deal by bribing legislators to pass more legislation doing just that.
I don't understand what the end game is for slashdotters.
For me, the eventual withering away of copyright is the goal. When we have other means of compensation in place and working, and working so well that copyright is merely a useless impediment, then we can let it die. Until then, artists will have a choice of means. Copyright will be only one of those means. There would have to be some exclusivity-- no one should be allowed to have it both ways, that is, collecting money under whatever alternative compensation scheme arises and then turning around and denying people so they can make (or think they can make) yet more money with copyright. The law can keep copyright enshrined forever, it just won't be used, not with other, superior methods in place.
Can you imagine what things would be like if people no longer had to fear the hammer of copyright violation? Want to do Star Wars or Lord of the Rings your way? Think someone else could sing and play the Beatles' songs better than the Beatles did? Think the dialog in Star Wars could stand some serious improvement? "You will never find a more wretched hive of scum and villainy", etc. Go for it, and Lucas, the Beatles, or the Tolkien estate won't have any say about it. The current situation is absurd. Save for parody, they get to dictate the value of and uses to which their "property" is put because not being in total control could somehow harm that value. I recall a boy did just that with Star Wars, and, incredibly, they considered suing the child! We might see a real flowering of the art of mashups. We might see genuine improvements of stories-- not bowdlerization but actual refinements, and the preferred version of a story could easily be something many authors worked on. Sort of like a certain work known as The Bible. As for the rest of us, we'll have the freedom to openly use our computers and networks to their fullest powers.
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Yes they should be forbidden in the same way that if I walk into a store and choose between buying a CD and a DVD and go for the DVD, the music publisher does not get to ask the movie company for money for the "lost sale". You see, it does not MATTER what is the reason someone chooses not to buy something.
But the people downloading could be charged with unlicensed copying of the ONE copy they make. That is their crime. "Not buying" is not a crime, the world does not owe anyone success in business.
according to me (Score:3, Insightful)
Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost
According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.
True, but does rationalizing necessarily equate to sinning^H^H^H^H^H^H^H committing the crime?
If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No.
Hmm. You know, I quit buying music shortly after I quit listening to "free" music. (Broadcast radio. Various reasons I got turned off the radio stations.)
I've got a few albums I bought because I thought I liked the band. About half of those, I decided I no longer liked the band, even the the songs on the albums that made the charts were the ones I listened less to. I've got a few albums I bought on recommendation,
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True, but does rationalizing necessarily equate to committing the crime?
If you say "I committed a crime, but it's ok because..." then yes, that does equate to committing a crime. It takes some amazing mental acrobatics to get around that.
As to the rest of your post, people always pretend like they buy more music because of piracy. I used to use that excuse myself. And that's precisely why I know it's untrue. The ability to get something for free decreases your willingness to pay for it. Simple as that.
If indie artists want you to experience their music for free, they'll le
You're dodging the question I'm asking. (Score:3, Insightful)
I'm not saying it's okay to copy when the artists say they don't want that.
Yeah, others are saying that, but I'm not.
I'm pointing at a couple of big gaps in the argument. First, the "rights" organizations no longer really protect the rights of the artists. What they are doing is wrong. It may be legal, but, if it is legal, it is still based on bad, unconstitutional law.
They could have approached the copying issues in a much better way, if they had simply recognized the realities of the market.
Zeroeth: you c
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If indie artists want you to experience their music for free, they'll let you. Taking it against their will, and then acting like they should thank you for it is just absurd.
And, more importantly, it harms those very artists who do offer some of their music for free. If you restrict yourself to legal avenues for learning about new music then you'll only hear about the bands with a relevant business model and the ones that attempt to tightly control their products will simply not exist in your world and will never see any of your money, while the ones that embrace convenient distribution will end up seeing a much larger proportion of the money you spend on entertainment.
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Re:Deep pocket lobbyists will get you everything (Score:5, Interesting)
If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
Guess again. There are now enough internet radio stations and independent artists who are willing to provide music for free that it would be quite feasible to go without buying any music.
But this serves only to demonstrate that your premise of it being impossible to listen to music without paying for it is flawed, since there is no way to regulate the actions of people who want to give their works away. If there were, I doubt that Linux would cease to exist.
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If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
They wouldn't have any choice, would they? That's exactly what the people who are trying to control music distribution want. They don't want anyone to produce and distribute any music that they can't play middleman to.
When I see peo
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That's exactly what the people who are trying to control music distribution want. They don't want anyone to produce and distribute any music that they can't play middleman to.
That's the real reason they're fighting P2P. They're terrified of it, not because of some lost sales, but because it is a competitor. What they fear is that artists will start realizing that P2P is popular enough that they don't need the RIAA companies anymore. Their main goal isn't to win any of these legal cases, but to make people afraid of downloading from P2P networks. The RIAA is more worried about people downloading Indie music from P2P than they are their own music.
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That's exactly what the people who are trying to control music distribution want. They don't want anyone to produce and distribute any music that they can't play middleman to.
That's the real reason they're fighting P2P. They're terrified of it, not because of some lost sales, but because it is a competitor. What they fear is that artists will start realizing that P2P is popular enough that they don't need the RIAA companies anymore. Their main goal isn't to win any of these legal cases, but to make people afraid of downloading from P2P networks. The RIAA is more worried about people downloading Indie music from P2P than they are their own music.
Exactly. The musician doesn't need them any more. And the fans can find better music elsewhere.
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The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest. Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.
Amen to that. I still find it incredible that people try to legitimately claim that piracy actually HELPS these industries.
Don't get me wrong, I don't feel bad for the RIAA, in fact I find them pretty reprehensible. But to claim that downloading content for free doesn't adversely affect these companies under their current business model is just foolish.
The RIAA is technically entitled to SOME sort of remuneration, but the argument being used for these inflated damages is absurd.
The fact of the matter is tha
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If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.
If the options for poor folk are "listen to the same tracks over and over" or "listen to no music" I think "listen to no music" wins out. "Listen to the same tracks over and over" is insanity-producing.
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If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music.
You foresee an end to radio in the near future?
As for myself, most of the music I am exposed to these days is theme songs.
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You foresee an end to radio in the near future?
For a short while, i listened to the radio on my way to work in the UK. Found a station which had some really nice music. The next day, they also had nice music. The third day, really nice music, but it was the same as on the first two days. After a week, I had enough. I swear they have one record "40 Greatest Hits of the 70's" and "40 Greatest Hits of the 80's" and that's it.
So yes, I could easily foresee an end to radio soon.
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If the tap were turned off tomorrow, yes, people would go back to buying music. Who's to say they're not buying it now? They could be buying an album every few weeks/months in addition to everything else they're downloading for free.
If the tap were turned off, they would continue to buy that same limited number of CDs.
While I don't condone copyright infringement in the least, I accept that a download does not in any way equate to a lost sale.
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116 times their actual damages would be around $40
That's still an imaginary damage. Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost, or 2. buy it precisely because they downloaded it, liked it, and decided to buy it. No lost profit there either, quite the opposite in fact.
That's a very good point.
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For some reason I thought the making-available theory had been successfully challenged in open court, and was no longer being used.
Your reason for thinking that it has been successfully challenged in open court, and was rejected in every case in which the matter was fully briefed.
As to whether it is being used, the RIAA would never let a little problem like the LAW stop them.
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Does it strike anyone else as odd that statutory damages are being treated as the big issue in his case?
It was actually the judge who moved the issue to the front burner by saying that she saw it as something that needed to be raised early in the case by means of a motion to dismiss complaint.
IMHO she was wrong about that; I think it cannot be determined until after a trial and then only if the RIAA recovers a statutory damages award, because there are a number of factual issues -- necessary to the question's resolution -- which simply cannot be adjudicated at this point.
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Why? Because Joel Tenenbaum had a good opportunity to get out of this whole mess when he was asked to settle for $4,000. That's $571 for each work specifically identified, and about $3.33 for each work that he was actually sharing (of course a settlement would not have excluded other copyright owners from independently filing suit).
And that, my friend, is exactly the problem. If the law threatens Mr. Tenenbaum with liability up to 180 million dollars, then he cannot afford the risk to defend his position in court. If I damage your car, and you claim that I caused $4000 damage and want me to pay, I have the choice of paying or going to court. But if I ask a lawyer and he tells me "you better pay the $4000, because losing a court case might cost you $180 million", then I have to pay, and can't afford losing everything over this. And tha
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if people are giving the choice of paying $4000 and losing everything, they have no choice
Financially, of course, you are right.
But if you are sued for something you didn't do, which is true in the majority of cases, it's not so easy to just pay extortion money. A handful of people who could have "settled" chose not to, and at great personal sacrifice fought back.
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The answer is more simple than you have imagined!
Everyone is JESUS CHRIST. They must ALL die for all of our sins. They know they won't get us all and they know they won't get all of our money, so now they are crucifying the few for the greater good.
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Small people simply aren't capable of such far-reaching negligence.
Excellent (Score:4, Interesting)
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
Re:Excellent (Score:5, Informative)
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.
The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.
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Looking at the tactics of the *AA crowd, it will have to get to that level. Ordinarily, I'd agree with you on this one, but these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings.
Unless they really screw up and catch massive sanctions and some of their pit bulls face the neutering of disbarrment, that is.
Re:Excellent (Score:5, Informative)
these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings
You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.
They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.
Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.
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Could a couple of concerned US citizens set up a a test case and 'fully litigate' it in order to set a legal precedent?
I'm sure we could find a slashdotter who can write a song (quality unimportant), copyright it, and then have it pirated by another slashdotter and then press for RIAA style damages (which would be given back in the unlikely event of a win).
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Re:Constructed Cases (Score:2)
But is there something stopping this?
It's like that theorem against nearby intelligent life - "If it's that easy, why hasn't it been done?"
Re:Song! (Score:2)
(Warning! Pastiche Post!)
On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards.
I believe quality DOES matter because that will help the song share, and not accidentally die a Red-Herring death from apathy.
(Pasted from Thursday's thread:
Re:In MP3 format, so what? (Score:3, Informative)
by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal
The MP3 is the format that's being served up by the government's website.
The reason the
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On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards:
(Pasted from Thursday's thread: Re:In MP3 format, so what? (Score:3, Informative) by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal The MP3 is the format that's being served up by the government's website........the Court making the determination (a) makes its own oral arguments available online, and (b) the format in which it chooses to do so is MP3's, which are freely shareable, and even remixable. This oral argument could wind up as the soundtrack for some anti-RIAA movies on YouTube.................
... These are the youtube copies, courtesy of another user:
Re:Someone, please... (Score:4, Insightful) by mariushm (1022195) on Thursday April 09, @09:19PM (#27526845) Here you go: Part 1. http://www.youtube.com/watch?v=f2RHBDwlH8c [youtube.com] [youtube.com] Part 2. http://www.youtube.com/watch?v=FsHAF39JxNs [youtube.com] [youtube.com] Part 3. http://www.youtube.com/watch?v=06BJu9GVU-w [youtube.com] [youtube.com] Part 4. http://www.youtube.com/watch?v=3JcOi6htmHM [youtube.com] [youtube.com] Part 5. http://www.youtube.com/watch?v=I9idglz0ANA [youtube.com] [youtube.com] Part 6. http://www.youtube.com/watch?v=PWOAR6ZU0JA [youtube.com] [youtube.com] 9 min 10 sec each, last is 1 min 10 sec
... Ray's Official acknowledgement:
Re:Someone, please... (Score:2) by NewYorkCountryLawyer (912032) * on Friday April 10, @12:05AM (#27527935) Homepage Journal mariushm, Thank you for putting it up on YouTube. I've linked to your above comment, providing the YouTube segments, in my blog post.
... This is what should happen next:
Paging all nerdy internet DJs (Score:5, Insightful) by Weaselmancer (533834) on Thursday April 09, @06:45PM (#27525597) Someone needs to heavily sample this and mix it into some house music, stat! If you think the RIAA is going nuts now just wait until that shows up on P2P. .....
At the time of this post there were no entrants posted to the Slashdot thread of such mixes. I have an idea of a starting point but I have to hope "quality does not matter" so someone more talented than I gets the idea and can do better.
Thank you, Tao! I needed an organizer.
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FWIW, the lawyer* whose offices I'm going to be painting tomorrow agrees with you. He laments that the same sort of precedent doesn't often apply to the DUI and non violent drug cases he works and hopes you don't have too many Pyrrhic victories.
Cheers from *MK(said lawyer) and me and whole crazy bloody crowd of good people here at my 42nd birthday party bash where we are violating a whole helluva lot of stupid laws, reading slashdot, streaming music, arguing, and having an absolutely incredible goo
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And many happy returns of the day.
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Re:Won't the Supremes intervene again? (Score:5, Insightful)
I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)
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I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)
You'd have to be. The first four we (and most) can agree on, but I'd be surprised if Souter would side with the RIAA and DOJ on this one. While appointed by GHWB, he has tended towards the liberal side in most decisions. He's rather "common sense", using the Constitution as a general guideline not a strict rule--he'd likely side with the little guy in this case.
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This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
Except for that whole Eldred v. Ashcroft fiasco described in Lessig's Free Culture.
Re:Excellent (Score:5, Informative)
yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).
The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.
If you think law review articles are not read by the courts and considered carefully you are wrong.
In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.
Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.
Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.
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In many 'cutting edge' areas of law many judges cannot be 'up-to-speed' without input from reasonably respected sources of legal scholarship to draw upon.
Nor can any lawyer prepare a proper brief without him or her self engaging in scholarship. When I went to law school I was working in a law firm at the same time, and found it impressive how intimately related legal scholarship and legal work were. Any lawyer who is not also a scholar is not a top notch lawyer.
Support Roll Your Own Artists! (Score:4, Interesting)
Whatever happened to improvisational near real time performances in the public domain.. rotfl.
Well anyway if someone wants a recording of the bad storms that rolled through here about 3 hours ago with some guitar recorded live.. here it is.
Tennessee Storms of April 10, 2009 and guitar [archive.org]
Like the universe..the net has a lot of alternatives, and not just mine. Stop being force-fed what you like.
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Nice!
That actually made my day, Stranger.
Many thanks....
Re:Support Roll Your Own Artists! (Score:4, Insightful)
Well Done!
Not my normal type of music, but that was an interesting piece of work, having the storm in the background. Calm and soothing, yet with a dynamic tension that keeps it from going stale halfway through. (it reminded me of something I could have expected from Carlos Santana)
This is a good example of why all of the "Oh No! The music is dying!" crap from the RIAA and their shills runs in one ear and immediately out the other with me.
There are just too many people out there like you, who will make music for the enjoyment of the music...and don't mind sharing.
Thanks for both the attitude and the music. You made my day with that!
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Nice. I like the almost symphonic-percussion effect of the thunder, juxtaposed to the quiet guitar. Easy to visualize as very small man, very large thunderstorm. Could be the start of a new genre! :)
Obama Justice Department (Score:4, Interesting)
So how's all the Hope and Change working out for you?
Re:Obama Justice Department (Score:5, Insightful)
So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?
I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.
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Nevertheless we are early in the game,...
Yes, this is what I am watching. The momentum this has been building will not turn nor stop on a dime. I've noticed Obama getting a lot of flack here becuase he has not chaanged everything overnight.
Some good stuff has came out of the White House since January, and a few not so good.(wiretapping specifically)
I will have a clearer picture after, oh, say a year has elapsed.(Jan. 2010), than now at less than 4 months.
*toast*Here's to hoping!
Back on topic, there seems to be increasing resistance to the RIAA's t
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Sorry...cheap lawyer jokes are just too tempting. This applies to doctors and lawyers, but why is it that their work is called a practice? You would think that given the importance of the issue you are going for you would rather be going to their expertise rather than their practice.
On a serious note....do you think it is a potentially good thing that some of those big name RIAA attack dogs are now going
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do you think it is a potentially good thing that some of those big name RIAA attack dogs are now going to be prevented from working these cases due to their new DoJ jobs? Do you think these guys that deep in RIAA pockets and/or ideologically friendly to the RIAA tactics/arguments or were they just doing the job they were being paid to do?
I don't know any of the lawyers who went to the DOJ personally. I haven't personally litigated with any of them, so I really can't say anything about the way they comport themselves. I.e. I don't know if they are "attack dogs" or not; I only know that they were working in one way or another with some attack dogs. As to whether it is good or bad that they are in the DOJ I can't say. If they are honorable people their presence there shouldn't present a problem.
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Thanks for everything you do, I especially appreciate that somebody else cares enough about these thugs to do something about it. You give the rest of the lawyers of the world a good image.
Thank you but I am not alone in thus. A number of fine lawyers all across the country have joined me in this fight, at great personal sacrifice, just to stand up for a principle.
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Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
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Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.
Sweet (Score:2, Funny)
news headline (Score:2, Troll)
Legal experts say the RIAA is full of shit. In other news, scientists say creationist claims are innacurate. In still other news, fire is hot.
I never thought of the argument in that way (Score:2)
This person should be responsible only for the content he downloaded, and punished for making it 'available' to others, but he or she did not force i
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I blame politics.
Considering what AIG just pulled, the RIAA following suit probably isn't too far behind.
Also, remember that aide that effectively ordered the DOJ not to investigate him?