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?

[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.

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?