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

First post!

[Harmonious Botch]

Notice is hereby given that Harmonious Botch claims copyright to the phrase "First post", both with and without an exclaimation mark, in uppercase or lowercase or any combination thereof, whether actually posted as a first post, a later post, or not posted at all, in alphabetic characters or other representation, including, but not limited to, brail, 1337, and morse code, in English, or any other language, whether posted on Slashdot or any other forum; and all derivative phrases, including, but not limited to: "Frist post", "Fist pots", "Frost p0st", "Frist pozt", "Frost pots", "Forced p0st", "Forced pots", "Firts post", "Fist post", "Frost post", "Fist pozt", "Frost pozt", "Forced post", "Furst post", "Frist psot", "Firts psot", "Firts p0st", "Fist p0st", "Frost psot", "Forced psot", "Forced pozt", "Furst psot", "Frosty piss", "Frist pist", "Firts pist", "Furst p0st", "Forced piss", "Fist pist", "Frost pist", "Forced pist", "Fist psot", "Furst pist", "Frist p0st", "Frost p0st", "Frist pozt", "Firts pozt", "Furst pozt", "Frist pots", "Firts pots", "Furst pots", and any similar phrase, both with and without an exclaimation mark, in uppercase or lowercase or any combination thereof, whether actually posted as a first post, a later post, or not posted at all, in alphabetic characters or other representation, including, but not limited to, brail, 1337, and morse code, in English, or any other language, except for French - I'm not that desperate, whether posted on Slashdot or any other forum.

Re:First post!

[packeteer]

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

The lawyers always win...

Re:First post!

[Anonymous Coward]

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

The lawyers always win... It sounds like some sort of Ubuntu release name to me...

Re:First post!

[Anonymous Coward]

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

Re:First post!

[Frosty Piss]

If Ubuntu uses "Frosty Piss", I'll sue.

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

[rawr1]

Actually the RIAA may be trying to forge "evidence" and committing fraud by artificially spamming take down notices in order to trigger legal clauses calling for penalties on academic funding and requiring the purchase and installation of their proprietary "deep packet inspection" spyware software programs. They've been pushing legislation that equates "take down notices" or subpoenas with evidence of copyright infringement requiring legislative action triggers. This is an attack on taxpayers, an attack on education, and an attack on Constitutional civil law.

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

[CorSci81]

I personally had to not laugh out loud when I read the idea that a lawyer thinks a room full of lawyers is a fair representation of the "intellectual elite". To me that's not unlike saying a jar full of leeches are a fair representation the most medicinally beneficial animals. Sure, sometimes they're useful, but generally they're just out to suck your blood.

Re:Good Grief!

[QuantumG]

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

The rest of us have no problem.

That's a long summary

[noidentity]

Sure was a long summary... wait... you bastards, you tricked me into reading the article!

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 ?

[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.

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:Ad hominem ?

[_Sprocket_]

I think there's a picture of the good Professor next the "ad hominem" in the dictionary. Or, at least, there will be on the Wikipedia soon.

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?

[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: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?

[Nullav]

Assuming a bitrate of 256Kb/s, that's 1/32nd of a second. You may as well sue me over that comma; I apparently just plagiarized your post.

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

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: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:Who are these people?

[Anonymous Coward]

I wonder how many Americans would agree that the quote-unquote "intellectual elite" should run the country. You do realize that when you type something like this you don't have to actually say "quote-unquote". You just put the "'s before and after the phrase right?

Re:What?

[NewYorkCountryLawyer]

Who is NewYorkCountryLawyer, and why does he talk about himself in third person? You must be new here.

Re:Bad link

[NewYorkCountryLawyer]

The first link is, I believe, wrong. The debate with Doroshow on statutory damages is here: http://recordingindustryvspeople.blogspot.com/2008/05/transcript-of-march-28th-fordham-law_02.html How is it that no-one seems to have noticed there was no debate with Doroshow in the linked article? Reply to This You are quite right. Sorry about that. First link should have been to statutory damages transcript or to post listing all 3 transcripts.

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.

Re:Don't forget ...

[hairyfeet]

The correct form of the classic SCO troll is this

PAY YOUR $699 LICENSE FEE, YOU COCK-SMOKING TEABAGGERS!

I'm sorry, but I'm afraid your failure to correctly post even a simple classic troll simply doesn't measure up to the high standards we have here at slashdot. You see, unlike at digg or fark, we here at slashdot have a rich tradition of truly great trolling, and because of this we attract only the best and brightest of the trolling community. Our trolls gone on to lead very rich and lucrative careers in exciting and rewarding fields such as shills for Microsoft and Comcast management. Who do you think came up with the whole "make available" scheme the RIAA uses? That's right, a former slashdot troll!

So please, in the future put more care and thought into your trolling. Remember that you are walking the path blazed by such luminaries as the GNAA and that you stand beside such greats as the shit eater troll and the ASCII goatse guy. So in the future try to remember the greats that came before you along with your trolling peers and live up to their high standards. Thank you for your time and may you have a successful career trolling here at slashdot!

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:Good Grief!

[easyTree]

And, once again, WON ANY SIGNIFICANT CASES, BECKERMAN? Of course the answer is NO...

Is it just me or does this conjure memories of <every-film-you've-seen-involving-an-exorcism>, where the malignant spirit is mocking the priest as he attempts the exorcism ?

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 ;).

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.

[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: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: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.