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

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

[Bios_Hakr]

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.

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

[lordofthechia]

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)

Re:Ad hominem ?

[NewYorkCountryLawyer]

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. You are quite right. There was nothing whatsoever "ad hominem" about what I was saying. Prof. Hansen had taken a vote among the audience participants (?!), most of whom were lawyers who represent large companies who are large content owners as to how they thought the "making available" issue would play out, and then suggested to me that the vote was authoritative. I was just reminding him that we are a nation of laws. Fortunately, 3 federal judges also reminded him of that during the ensuing month.

These guys don't even know what they are debating

[dwpro]

From the first few lines:

PROF. HANSEN: 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]
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.

Mod parent up.

[TheLink]

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 ;).

Re:Judges and Common Sense.

[TheoMurpse]

Copyright is a created right we no longer need

Specifically for the music field, I've been coming to this conclusion for a short while now, simply because I haven't paid for music in a long time, and I've not broken the law in doing so despite the fact that I listen to new music all the time.

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?

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

[wtansill]

This is an attack on taxpayers, an attack on education, and an attack on Constitutional civil law.

Speaking of Constitutional law (and IANAL), it would seem to me that someone might want to have a look at the Constitution's "takings" clause. It would seem to me that the diminution of the purchaser's rights of fair use, first sale doctrine and so forth caused by ever-more draconian laws (DMCA, flagrantly abusive copyright term extension) would constitute a Governmental "taking" that is just as real as the taking (or diluted value) of real property. At the least, I would think that such a "taking" is as real as the "intellectual property" argument being advanced by the various **AA organizations.

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?

Re:Making Available

[Prof.Phreak]

...this means you have deprived me of my rightful compensation.

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.).

Re:The future is hard to imagine.

[TheoMurpse]

Typing away on Slashdot, I can imagine a free news service and one that "rips off" other news services. No one owns facts. The real service is matching reader interest with world events and that's something Slashdot does very well.

Ah, but in my hypo I suggested that the NYT was subscription based.

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.