NewYorkCountryLawyer Debates RIAA VP

NewYorkCountryLawyer writes "At Fordham Law School's annual IP Law Conference this year, Slashdot member NewYorkCountryLawyer had a chance to square off with Kenneth Doroshow, a Senior Vice President of the RIAA, over the subject of copyright statutory damages. Doroshow thought the Jammie Thomas verdict of $222,000 was okay, he said, since Ms. Thomas might have distributed 10 million unauthorized copies. NYCL, on the other hand, who has previously derided the $9,250-per-song file verdict as 'one of the most irrational things [he has] ever seen in [his] life in the law', stated at the Fordham conference that the verdict had made the United States 'a laughingstock throughout the world.' An Australian professor on the panel said, 'The comment has been made a few times that America is out of whack and you are a laughingstock in the rest of the world. As the only non-American on the panel, that's true. We do see the cases like Thomas in our newspapers, and we think: "Wow, those crazy Americans, what are they up to now?" This whole notion of statutory damages is not something that we have within our Copyright Act. You actually have to be able to prove damage for you to be able to be compensated for that.' NYCL also got to debate the 'making available' issue, saying that there was no 'making available' right in US copyright law, despite the insistence of the program's moderator, the 'keynote' speaker, and a 'majority vote' of the audience that there was such a right. The next day, two decisions came down, and a month later yet another decision came down, all rejecting the 'making available' theory."

Comments

There is no 'I told you so' more poignent

[zappepcs]

than to have judges get your back when you are arguing with someone about how fucking wrong they are.

One word sums this up: SWEEEEEET!

It took time but the RIAA and their lawyers are starting to look like the ass cabbage that they really are. It's quite nice to see that /. was represented (in a way) in that slap to the face.

Re:There is no 'I told you so' more poignent

[DoofusOfDeath]

I'm not so sure. Given that judges have made so many mind-boggling judgments regarding copyrights and patents in the past, having one of those judges agree with you isn't exactly proof that you're a rational and intelligent person.

Re:Good Grief!

[QuantumG]

Just cause you cant understand him doesn't mean he's incoherent.

The rest of us have no problem.

Ad hominem ?

[erlehmann]

PROF. HANSEN: Okay, Ray. Thanks. You reject the idea that the intellectual elite, which I think is fairly represented here, should not run this country?

MR. BECKERMAN: The law runs the country. This is a nation of law, not a country of lawyers who are best paid by large content owners.

PROF. HANSEN: Ray, let's not get ad hominem. You know what ad hominem means? You've got a losing argument and you're desperate. So just stick to the merits. Jane?

I am not an expert on rhetoric, but this seems wrong to me - Beckerman apparently wasn't discrediting the argument, "the law runs the country" is the statement he uses to counter the question by Hansen. As I see it, the suffix statement rather serves to state the alternative, not to attack the Prof. personally.

Re:Ad hominem ?

[Anonymous Coward]

Not to mention that a condescending question like "you know what ad hominem means?" is itself an ad hominem (I mean, does he *really* think NYCL doesn't know that term? of course not)... and also not to mention that his characterisation is not even correct. Ad hominems are something that people whose arguments can't stand on their own merits MAY resort to, but that is neither a sufficient nor a necessary precondition: you can use ad hominems even if you're 'winning', and you also can be 'losing' without resorting to any fallacies, and even if you DO resort to them, you don't necessarily have to resort to personal attacks.

There's probably a term for what Hansen was doing here, too; in any case, as you rightly point out, it was him who was arguing fallaciously here, not NYCL.

Re:Ad hominem ?

[Anonymous Coward]

I read the transcript, and I was deeply offended by Prof. Hansen's elitist, arrogant attitude.

Prof. Hansen, the moderator, starts the meeting with a reading of a "paper with an overview of the law" by Michael Schlesinger, which unfortunately is not yet included in the transcript, but apparently presented arguments in favor of the theory that a grant of exclusive right to "making available" exists in US copyright law. After presenting one side of the debate, he askes the panel to reach a conclusion:

Just a show of hands. How many think under U.S. law, to the extent you understand it, that the acts of peer-to-peer network, of making something in a folder for further pickup, would be a violation of U.S. law?
[Show of hands]
How many would say no?
[Show of hands]
Significantly fewer.
I think that's all we need to do. I think the ayes have it. We can move on to statutory damages.

He then invites NYCL to represent the minority opinion after setting the stage that a reasonable conclusion had already been reached. I think maybe he was a bit embarrassed when the fallicy of his meaningless "show of hands" and arrogance of his interpretation of the significance of it's result was pointed out:

Unlike the raising of hands by Professor Hansen, this is not a super-Congress here. We are not the United States House of Representatives or the Senate or the president or all three combined, which are required in order to enact a law in the United States. The law in the United States says that a distribution requires "a dissemination of copies of phonorecords to the public by a sale or other transfer of ownership or by license, lease, or lending." That's it.

To which he responds:

PROF. HANSEN: Okay, Ray. Thanks.
You reject the idea that the intellectual elite, which I think is fairly represented here, should not run this country?

Now I'm not sure what Prof. Hansen means here, as it's not well-stated. "You reject the idea that the intellectual elite ... should not run this country?" No, NYCL had just *advocated*, not rejected, the idea that self-appointed "intellectual elite" or otherwise, do not and should not enact law in this country. Given Prof. Hansen's arrogant attitude, I can only assume he means the opposite of the way he stated it, and he's asking NYCL to affirm that he rejects the idea that the intellectual elite *should* run this country.

In that context, NYCL's response was absolutely appropriate:

MR. BECKERMAN: The law runs the country. This is a nation of law, not a country of lawyers who are best paid by large content owners.

To which Prof. Hansen retorted:

PROF. HANSEN: Ray, let's not get ad hominem. You know what ad hominem means? You've got a losing argument and you're desperate. So just stick to the merits.

I see nothing ad hominem at all in NYCL's remarks. Prof. Hansen had just suggested that the "intellectual elite", who were "fairly represented here", held the "correct" opinion on the interpretation of US law, as evidenced by his "show of hands" from among those very "intellectual elite" -- case closed, move on to the penalty phase. NYCL pointed out that these matters are decided according to written law enacted through Constitutional means, rather than by a "show of hands" from among a group of "lawyers who are best paid by large content owners". Prof. Hansen, rather than counter the logic of NYCL's argument on the merits, instead accuses him of an ad hominem attack, and tries to justify his accusation by saying NYCL is "desparate" because he's "got a losing argument" (apparently according to the oh-so authoritative "show of hands").

One wonders on what "merit" rests Prof. Hansen's opinion that NYCL's citing of Constitutional priciples represents a "desparate", "losing argument" lacking "merit"? Which "merits" would he have NYCL "just stick to" instead, the "merits" of the result of a "show of hands" among "the elite"?

Re:First post!

[packeteer]

"Forced pozt", "Furst psot", "Frosty piss", "Frist pist", "Firts pist",

The lawyers always win...

Ms. Thomas had 100Mbps feed to the Internet?

[Anonymous Coward]

So the average song size was around 3Mbytes, 10 million copies would make for a total upload of around 30 Terabytes.

On my ADSL service (1.5Mbps download/256kbps upload), it would take me over 37 YEARS to upload that much data assuming I used it for nothing else, and the service had 100% uptime! Heck even if I got ADSL2+, uploads would still only be 4 times faster - bringing it down to just under 10 years to do that kind of an upload.

I guess I really do live in an Internet backwater...

Re:Ms. Thomas had 100Mbps feed to the Internet?

[Evets]

I do find it interesting that the "intellectual elite" seem to forego the actual facts of a case in favor of theoretical postulation as to the reasoing behind past and future court decisions.

It goes to show how easily an education can be politically tainted.

Re:Ms. Thomas had 100Mbps feed to the Internet?

[alanwj]

I would (without any legal training) guess that you don't necessarily have to transfer the entirety of song to infringe on its copyright.

Were I running bittorrent, and transferred a 1K chunk to 10 million people, one might could argue that I've infringed 10 million times.

Of course, I'm too lazy to check whether that theory is at all applicable to Jammie Thomas's case.

Re:Ms. Thomas had 100Mbps feed to the Internet?

[smallfries]

One of the most terrible attempts to deliberately Goodwin a thread ever. You have to at least try and make it sound relevant

Re:Ms. Thomas had 100Mbps feed to the Internet?

[smallfries]

Yes. They're trying to claim damages from you because other people are distributing the file. I can't see anything wrong with that argument at all...

Re:Ms. Thomas had 100Mbps feed to the Internet?

[TheoMurpse]

Except that you're assuming vicarious liability for copyright infringement or contributory infringement would come into play here, as that's the only way a 3d party can be responsible for another's copyright infringement.

However, vicarious liability requires that the 3d party (the original uploader) have a financial interest in the infringement. This is clearly not true in the case of P2P, as no one has a financial interest. You'd have to make an extremely tenuous argument that by others infringing the song that you already infringed upon, they're making the service more popular and therefore increasing the number of other songs you want to download, and therefore that's a financial interest on your part to have others infringe. I think that's a lot of links in the chain considering that the classic case of vicarious infringement is a swap meet owner in which one vendor renting space is bootlegging music and therefore driving traffic to the swap meet, where the swap meet owner makes money on ticket sales at the door.

Contributory infringement would be an easier case than vicarious infringement, but I think it would fail in that giving someone an infringing MP3 is no more contributory to infringement than what Apple does when they sell you a non-DRM audio file that you can turn around and pirate.

Making Available

[Anne Thwacks]

"Making Available" was tried (in the 1950's?) to justify shoplifting from supermarkets who "piled it high and sold it cheap". It was laughed out of court, as it was pointed out that if acceptable, it would have excused boys stealing from market barrows.

Or, to put it another way, If I have something, and anyone who sees it can steal it, claiming I have "made it available" how many cars would not be stolen in New York?

Perhaps someone should ask the RIAA this question.

Re:First post!

[Anonymous Coward]

What is even more impressive, that you actually did get a first post after writing all that.

Re:What?

[Medieval]

That's cute. If you weren't an AC it would be even cuter.

Dance for me, monkey!

Re:What?

[Tsujiku]

Just because one opposes the RIAA does not mean that one advocates all of the things that the RIAA opposes. The issue here is not that the RIAA wants people to pay for its music; it's that the RIAA is using absurd definitions, underhanded tactics and exaggerations to take money which they don't deserve. The fact that one side breaks the law does not make it justified for the other side to ignore it.

after all is said and done...

[DragonTHC]

Litigation is not a business model.

the victims of these law suits will file a class action and reap what the RIAA has sowed.

Consent of the governed.

[gnutoo]

We are a nation of laws created with the consent of the governed. There are limits to what people will put up with no matter how clever Hansen and friends think they are.

Hansen thinks he would like to live in an aristocracy but he is sadly mistaken. He and his friends in the room feel good about their position in the world today but the more power they gain, the smaller the room will become. Aristocracy quickly becomes autocracy and autocrats have little need for lawyers once they are established. It starts with the mistaken notion of, "my opinion is more important than yours," and it ends with, "do as I say."

Judges and Common Sense.

[gnutoo]

That's two judges and both of them took more time and trouble to understand the issue. That says a lot about Beckman's position.

The absurdity of the copyright warrior opinion was well represented at the debate itself. When talking about "common sense" they failed to use much of it. Instead of looking at the intent of copyright law as established in the US Constitution, they picked apart meanings of various sections of copyright code and cases that have no real bearing. It is as if they took a highlighter to millions of pages of random text and selected the words that make their case best then triumphantly declared themselves masters of the Universe. Ouija-boards are more honest.

Scholars such as Lessig and philosophers like Stallman have looked at intent come to the very reasonable conclusion that verbatim, personal copy should always be allowed because it maximizes the advancement of the state of the arts. The language of the Constitution is as plain and Copyright is a created right we no longer need.

The Constitution can only be ignored by confusing people with frauds like "intellectual property." The most obvious madness is the DMCA's attack on free speech by turning trade secret into to a kind of perpetual patent in the name of copyright defense. By confusing the purpose of each of these separate things, the copyright warriors have combined their powers into something no reasonable person would agree with. When created rights trump natural rights, you know the laws are out of balance.

Re:Judges and Common Sense.

[mOdQuArK!]

There will always be people willing to pay for 1) virtuoso performances, and 2) performances which enhance a "good time". The problem that the recording industry, and other copyright proponents, have is that they have gotten used to the concept of thinking of "music" as a concrete product in itself, rather than the physical medium being the product, and they're scared that they're not going to be able to maintain the same profit margins if they are forced to support a service-based industry rather than a product-based industry.

Re:What?

[TheoMurpse]

I didn't see "questioning" in your original post. I saw flagrant ad hominems and attacks on an entire profession:

third rate lawyers seeking publicity by defending teens' right to download music they don't want to pay for . . . a nation of hoodlums . . . neither side has any respect for the law . . . that won't get you publicity, and the resultant $$$ that you, like a typical lawyer, see flashing before your eyes . . . those more senior than you have a better awareness of your very nature than you do

Re:What?

[bigstrat2003]

pointlessly adversarial lawyer... There's nothing pointless about it. Your whole argument, frankly, is rubbish. When someone is abusing the law and using cheap tactics to get their way, you don't simply roll over and acquiesce to their demands, you FIGHT them, to try to get them to stop. Mr. Beckerman's work is necessary and proper, as he's trying to make sure that the law applies to BOTH sides in this fight, not just one.

Re:What?

[hairyfeet]

The problem with the RIAA,Mr. Coward,is that they STARTED this by ROBBING us. And by us,I mean you,me,our kids,grandkids,etc. They used their money which was gained by forming a nice little cartel which controls our radio waves to buy off our congress critters and by doing so broke the pact that copyright was based on. Copyright was a TRADE,understand? It WAS NOT a license to print money,or a way to make sure the record cartel would have permanent profits,but a simple trade. In return for our granting the copyright holder a LIMITED amount of time as the exclusive owner,we in return were to get a richer,more diverse public domain which ALL people,artists and laymen alike,could draw on for inspiration and entertainment.

And for a good 100+ years or so it worked beautifully. If the trade agreement hadn't been broken by the cartels you and I could listen to Hendrix,Joplin,Classic Stones,etc all for free. And artists would be free to take that music and reinterpret in new and exciting ways. But you see Mr. Coward,a trade agreement ceases to be a trade agreement when one side doesn't get anything in return.It would be like me offering you a free car dealership in return for the rights to all the older models traded in,only when I go to collect you kick me in the nuts and have me arrested for daring to step on "your" property. But you see Mr. Coward,it isn't your property because you didn't live up to the agreement. So YOU are a thief. Just as the RIAA has stolen from us all by robbing us of our public domain so that they can profit for eternity.

So while I haven't heard anything from the RIAA "artists" that I would actually listen to if you paid me,I would have no problem with someone else downloading their music. Because THEY broke the agreement and until a new agreement is reached that is fair and equitable to both sides I say they can go piss up a rope. But of course this is my 02c(released into the public domain),YMMV.

Re:What?

[CorSci81]

You're trolling, but I'll make my point anyway. In all of the comments I've seen by NYCL, and in looking at his litigation history I see little to no evidence that he is "anti-RIAA" because he opposes copyright in general. In fact, the litigation history suggests his typical case is one where the RIAA's fishnet has wrongly fingered someone for infringement and the RIAA insists on pressing forward despite having a generally flimsy case.

The impression I get is not one of anti-copyright, but one of anti-abuse of the legal system. There are many of us who support the idea that copyright infringement is wrong, but still abhor the legal practices of the RIAA. It's easy to just say "if you do nothing wrong you won't get sued" but I think there's a certain single mother in Oregon who would argue against that point. I really see no alternative in such situations but a direct confrontation. Perhaps you have a better solution Mr. Anonymous Coward?

As a side note: Perhaps you wouldn't get down-modded as troll if you made a truly insightful post rather than going for cheap ad hominem attacks. If you don't want to be marked as a troll don't sound like one when you post.

Re:What?

[NewYorkCountryLawyer]

You actually said this about America with a straight face: The law runs the country. This is a nation of law, not a country of lawyers who are best paid by large content owners. Yes. I said it with a straight face. The law runs the country. Yes there are 4 record companies and 6 motion picture companies who are doing their best to distort the law, but in the end the law will prevail. The federal judiciary was caught off guard by this bizarre litigation onslaught, but more and more judges are doing their homework and getting wise to what is going on. The RIAA is losing.

Re:Sure, you can't assume, but what is better?

[NewYorkCountryLawyer]

What I'm asking is what people propose as a (fair, reasonable, practical) alternative. Here's my suggestion:

1. Follow the Copyright Act.

2. Follow the Federal Rules of Civil Procedure.

3. Follow the US Constitution and make sure that statutory damages are not violative of the Due Process clause.

4. Follow normal, traditional practices of the copyright bar, in seeking to avoid, rather than rushing to precipitate, litigation.

I think that would be "fair", "reasonable", and "practical". Why don't you?

Re:Sure, you can't assume, but what is better?

[NewYorkCountryLawyer]

Which brings me back to the question I keep asking but no-one seems willing to answer: how are the theoretical protections afforded by US copyright law are worth anything in practice, if we accept that the current dubious legal manoeuvring shouldn't be allowed to continue but don't offer any alternative? Thank you for disclosing where you are coming from, and why you feel the way you do.

I can't speak for anyone else here, but can tell you why I am "unwilling to answer" your question. Because it is an absurd question. As we lawyers would say, it "assumes facts not in evidence".

You are starting from an assumption that US copyright law is not up to protecting the rights of copyright holders. As someone who has worked with copyright law for almost 35 years, I respectfully disagree.

If you are sincere in that belief, and I have no reason to doubt that you are, you are about the only person I have ever met who sincerely believes such a thing.

There are shills, trolls, flacks, lobbyists, and even attorneys, who work for content holders, who will publicly say such stuff when you press a button, but none of them sincerely believe such claptrap.

All copyright holders have to do is what they have been doing for decades in the US:
-keep an eye open for major violators of their rights,
-enter into cease and desist agreements with those violators, and
-as to those who refuse to enter into cease and desist agreements, if they are engaged in major copyright infringement, commence a lawsuit based upon (a) solid evidence, and (b) the well established law, and (c) follow the normal rules and practices of civil litigation in the federal courts.

The only people who ever tried to make anyone think that ambushing our populace with wholesale lawsuits against minor copyright infringements was an effective business model were the morons in the employ of 4 large record companies and 6 large motion picture companies who had failed to capitalize on one of the greatest business opportunities in the history of the world, the dawning of the digital age, and were now looking to find a scapegoat for their screwup, finding their scapegoats in children, grandparents, stroke victims, homeless people, and other hapless victims of the content cartel's madness. They, and the lawyers who have profiteered by inciting and exploiting this folly.

I am sorry if their propaganda machine has unduly influenced you. And I am sorry to disillusion you. But our copyright law and our court system work just fine, when they are not being abused by a host of well paid liars.