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: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]

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"?

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...

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?

[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.

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.