Slashdot Mirror
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."
Might actually be a viable defense in Court. Just have your ISP tell you how much you uploaded over the period the **AA is looking at.
And, even bring in your uTorrent config files. Mine is set to upload 2X and then stop. At most, I'd be liable for distributing 2 files.
I'd rather you do it wrong, than for me to have to do it at all.
I've seen "extent of possible damage" used as a defense effectively. Someone was suing my Grandparents for letting an animal loose which proceeded to eat some corn in a neighbor's field. Well the neighbor was suing for some ungodly amount of money claiming that that quantity of corn (or whatever it was) was consumed by the animal.
My Grandparent's attorney simply asked how many rows of corn were affected, how many plants per row. He did the math and came up that the neighbor was claiming up to 200 pounds of corn per stalk. Needless to say, the judge threw the case out.
Courts don't appreciate someone lying or exaggerating to make their case. Guess he could have argued that the animals couldn't have consumed that much corn in x amount of time too (if the time line were known)
Georgia Tech, the leader in Chia(tm) technology.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Notice how these kind of comments, when made, are always made by "Anonymous Cowards."
They don't seem to grasp the nuances of the issue, can't spell (even her name) properly, and generally seem like a perfect example of what social promotion and television have done to western societies.
These types will be the first ones who bow down and welcome the completion of the convergence of corporate behemoths and corrupt governments into the coming fascistic nightmare.
They speak of "the law" and seem to have disdain for those who think they are "above it," yet have no recognition of which parties in this issue are truly acting "above the law."
It does not fill me with faith in our future.
[Show of hands]
PROF. GINSBURG: Absent the applicable exceptions. At least prima facie.
PROF. HANSEN: Prima facie. A good point. Thank you.
How many would say no?
[Show of hands]
Significantly fewer.
"Making something available in a folder" is basically the internet, in a nutshell. The exceptions they speak of should rather be the rule. Staggering.
Millions long for immortality who do not know what to do with themselves on a rainy Sunday afternoon. -- Susan Ertz
In that case then, didn't the record company distribute the CD knowing that a percentage of purchasers would upload the content and start that chain reaction?
So, by that logic, isn't it the record company who's ultimately responsible for all the "damages" caused by this chain of illegal distribution?
Let's compare with RMS. RMS doesn't like traditional copyright restrictions, but does he go after the BSA for their shady auditing practices and try to make himself a hero of software "pirates"? No. He educates people to write and use "Free" software. It doesn't get him "RMS takes on Goliath, makes great points!" choir-preaching headlines, but his vision is long-term, stable, and has been fairly successful.
Oh, but I see I've just been down-modded to troll for questioning the pointlessly adversarial lawyer's motives. Slashdot's truly jumped the shark.
Mod parent up.
;).
From the transcript, if Hansen considers himself a member of the intellectual elite and still resorts to that sort of reasoning and argument, then I must be a super genius
Between free nerdcore and free mashup albums (specifically the Best of Bootie series that pretty neatly fall into the fair use category) and free podcasts and on and on, there's more legal and free audio online than one could ever listen to in a lifetime. Copyright might not be necessary in the field of music to promote the progress of the arts.
The only problem is that I can't see specific genres of music (namely, "classical") carrying on without copyright, as it takes a high level of skill to produce these works of art (debate all you want with me, but for me, free music online pales in comparison to something like Rhapsody in Blue or Tristan und Isolde. And I'm not willing to sacrifice opera and other great "proficient" works, I don't think.
I'm also not so sure about literature and movies, and I'm definitely not sure about news. I mean, can you imagine if anyone could just make a website called RippingOffTheNYT.com and just mirrored the site but with their own branding and ads (assuming the NYT was subscription-based and not free-for-all)?
In any case, this line of thought is very unexplored for me, but I've been toying around with the implications of excluding musical works from 17 USC for a bit.
Thoughts?
Namely, there's a big difference: the only purpose of making available an MP3 over P2P is so someone can infringe it by acquiring it from you. There are clearly other uses for placing automobiles in plain view besides to permit them from being stolen--namely, so you can walk into a certain shop when you're in the area.
On another note (and this idea is not original to me, but I cannot remember now where I read it), the idea has been advanced that since in many ways we are now treating "intellectual property" in the same manner as real property, we should treat it as real property in another aspect as well -- taxation. I am taxed on the value of my house and the land on which it is built. Well and good. If this so-called "intellectual property" is indeed so very, very valuable, then it should be taxed at a rate commensurate with the value assigned. Anything else would be, to my mind, grossly unfair to the the rest of the citizenry. How much would you care to bet that, subject to taxation, the copyrights to, say, "Gone with the Wind", "Bambi", "Mickey Mouse", etc. would suddenly be allowed to expire?
The contest for ages has been to rescue liberty from the grasp of executive power. -- Daniel Webster
I'm pulling this completely out of my ass here, but I suspect copyright is mostly irrelevant to most "classical" music modern and otherwise. Modern classical performers/composers still operate very much on a system not unlike patronage. I imagine record sales for any "new" classical music are quite low, the money is in the performance.
My personal example: the LA Philharmonic. When there is a guest performer (especially a big name like Midori) the concert will sell out months in advance, yet you rarely see recordings of such events. Also our former conductor Esa Pekka Salonen has decided to pursue a career in composition. As far as I know not a single piece of his has been included in a recording for sale, but several have been performed here and he seems to be doing just fine.
The LA Phil has recorded several albums, but I've yet to buy a single one. I'd much rather pay $80 for a good seat in one of the best concert halls in the world, and judging by the usual attendance there are a lot of people like me out there.
So no, I don't think classical music need concern itself at all with copyright. It generally gets by fine on performance and recordings seem more of an afterthought. Perhaps this is why we haven't seen record labels like Naxos suing the crap out of everyone?
2. Most likely the reason he's biased is that he has been representing some large content owning companies.
3. No I don't think he considered himself smarter than me. He's just afraid that I'm right. In fact, I think he knows that I'm right, but wants to persuade the legal community to think otherwise.
4. Two things that never really come across in transcripts are (a) humor and (b) irony. In my opinion, Hugh Hansen is a very funny, self-effacing, guy with a good sense of humor, and the transcript doesn't really do that justice. He knew that the things I was saying were important, and represented valid views of the law; that's why he invited me as a speaker. And he invited other people, as well, who are not in agreement with his views.
That being said, I would prefer speaking in an environment where the moderator treats my views with respect, and where the conference does not have an agenda of propagandizing for the moderator's viewpoint. Many of the attendees, many of whom were lawyers from foreign countries, may have been misled by the intellectually dishonest presentation Michael Schlesinger gave.
All in all, this experience was a little like being on the Bill O'Reilly Show.
Ray Beckerman +5 Insightful
Haha! There's no such thing! How about: the market (invisible hand) has properly determined the fair value of your creation (.mp3 file) to be so close to worthless that everyone is giving it away for free---and is properly compensating you with something equally worthless---such as name recognition and popularity (which you may apply to make money in other ways, such as sell tickets to live concerts, endorse products, etc.).
"If anything can go wrong, it will." - Murphy
The purpose of copyright as originally defined, in line with the purpose of the constitution itself, is to protect the weak from the strong. It is easy for a person or entity of means to steal a creative work. And when I say steal, I don't mean copyright infringement, I mean actual deprivation, actual stealing.
Remember that if you say something loudly enough and often enough, it has a tendency to become true. If you create a work, say, a literary work, or a piece of music, copyright protects you from having your work usurped a person or corporation that is much wealthier and resourceful than you. Essentially, without copyright, anyone can take your work and publish it, use it, and make money with it, money that rightfully belongs to you, the creator. Imagine a large record company taking your newly written song, giving it to a singer the company endorses, and then making loads of money off of it as the new hit single of that singer. While this is what's happening now despite copyright, here's the most important part: they credit the singer as the creator of the song, completely taking you out of the picture.
Imagine you are a fiction writer whose sent your first draft to a publisher to proofread (under contract no less). The publisher proofreads it, and then publishes it without your name on the work. Since you hold no copyright, despite being under contract, the publisher would not be breeching contract by publishing its own version of your work. Without a copyright, it wasn't your work to begin with, and the contract doesn't apply.
Copyright is important. In this world where the division between those with means and those without is so great, copyright exists to protect the emerging artist from the establishment. In fact, the whole concept of intellectual property exist for this purpose. And finally, the internet is capable of eliminating an establishment altogether, where the power of distribution has returned to the individual and is no longer consolidated in the hands of a few.
Without a doubt, copyright in its current incarnation is wrong. It has become twisted and perverted by the very entities it was meant to protect the people from. By extending copyright beyond the life of the creator, it serves to create establishments. Disney is a prime example of everything wrong with copyrights. Not only was it a product of poor copyright laws, it has contributed to the further perversion of copyright.
That doesn't mean we should eliminate it. What needs to be done is to return it to its original intent and purpose. For starters, copyright needs to be shortened. Infringement needs to be redefined, to again apply only to commercial copying. And despite being seemingly unrelated, it is most important that net neutrality remain.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
Without copyright, the NYT would have one subscriber: an admin of RipOffTheNYT.com. Everyone else would eschew paying for the NYT and get the exact same content for free from RipOffTheNYT.com.
Don't forget that the NYT and other investigative journalism organizations need to exist for places like Slashdot to exist. Slashdot doesn't investigate; it refers and contains discussion.
Speaking of which, couldn't the NYT just kill if it could get a critical mass of users to behave in a Slashdot way--their business model could be "come for the news, stay for the discussion." And if you had to subscribe in order to comment, they could ensure a relatively high level of discussion. Imagine Slashdot for people with Slashdot-comparable expertise in foreign affairs, or national politics rather than just tech (of course members of Slashdot know more than tech, but, e.g., not a substantial number of users are well-versed in the law--hence "IANAL, but") and with a mod system. I would pay (assuming I had a job) to participate in that sort of discussion on such far-reaching issues.
And subscriptions could be cancelled if people were flamers, thus ensuring good discussion.