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RIAA's $222k Verdict Is Likely To Be Set Aside
NewYorkCountryLawyer writes "Apparently the RIAA's 'big gun' didn't fare so well this morning in Duluth, when he tried to persuade the judge in Capitol v. Thomas that the part of the Copyright Act which says 'by sale or other transfer of ownership, or by rental, lease, or lending', can be disregarded. According to an in-person account by Wired.com the Judge indicated that he is likely to grant a mistrial, setting aside the $222,000 jury verdict based upon his incorrect jury instruction, and that he will probably hand down his decision in September. Just yesterday some of the same lawyers got rebuffed by the US Court of Appeals for the Second Circuit in their attempt to argue that Cablevision's online storage for its customers constitutes a copyright infringement, in Cartoon Network v. CSC Holdings. There, too, the content owners had argued that the wording of the Copyright Act did not mean what it said. There, too, the Court politely but firmly disagreed."
I don't think that's going to stand up. Undercover cops buy drugs and the state doesn't have to prosecute them for buying them. Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
Not defending the RIAA, but just pointing out something that seems illogical to me.
Start a happiness pandemic
I do not think that that word means what you think it does.
Even if the 'making available' argument doesn't stand under current law, you can expect attempted copyright infringement to be made illegal when congress gets back from vacation.
Give me Classic Slashdot or give me death!
The judge should strip them of their right to practice until the successfully pass an English language exam showing that they can actually read and comprehend words.
It's the only way they know how to play.
"in-person accounts" of things either - even if it's Wired.
Look at what happened to the two border patrol agents the Bush Administration is holding as political prisoners for arresting a drug runner who has ties to the Mexican Mafia and therefore to Bush.
The court of appeals said verbally that they were aghast, the prosecution ADMITTED that their star witness (the drug runner) lied under oath. The court of appeals in open court said that they couldn't see possibly how this was a valid prosecution under the law.
10 months later, after the Bush admin / Mexican mafia threaten the judges, they "somehow" now see how preventing the defense from showing that the drug runner had been caught running multiple loads even while under his "immunity agreement" with the prosecution - while the drug runner was claiming it was a "one time only thing" because "he needed money for his grandmother's operation" - was legally valid and no new trial is warranted.
My prediction: the judge who said this, will get a phone call from the Prez or several Congresscritters, or a visit from certain branches of covert government and/or MafiAA stooges, and will "magically" put off the ruling for 6 months and then issue the opposite opinion when he thinks nobody is looking.
I think it's an indication that judges do read ABA journals, that word does get around, and that perhaps there is a hope that these tactics are being exposed for what they are, a colossal rort of the legal system for private gain. You can fool some of the people some of the time, and some of the people all of the time, but you can't fool all of the people all of the time, it appears.
Do not mock my vision of impractical footwear
"Ya see, the Copyright Act, was just a big joke. I mean, when they were making it, they didn't even know about leasing non-physical things like music and software. Because, if it can apply to non-physical or non-real things, it's obvious that this so called Copyright Act isn't real in the first place."
As for the Congress getting more blatantly in bed with **AA, keep it up and I suspect people will stop writing them checks too, ass well as ignoring them generally. That's kind of the way these things seem to work in other countries.
By my reckoning, RIAA has had 20+ yrs to get a consumer usable act *started*, much less its act together, and failed. The model of selling the same tunes 12x to the same person in a digital age, threatening to break people "legally", and indiscriminately sucking off education resources, just doesn't cut it. Time to shape up or ship out, guys.
[song]
Welcome to duloc
such a perfect town
Here we have some rules let us lay them down
Don't make waves
Stay in line
and we'll get on just fine
Duloc is a perfect place
Please keep off of the grass
shine your shoes
wipe your...face
Duloc is
Duloc is
Duloc is a perfect place!
[/song]
Oh wait, DulUTH? My bad.
Look, I'm no fan of the RIAA, but to set aside a jury's verdict is fairly unamerican. A jury listened to the facts, contemplated the charges, and rendered a verdict. Setting that aside is something that courts should be loathe to do, and should only be done at the appellate level by seasoned, reasoned jurists.
...or is it just too tempting?
I wrote a (very) short piece on this after the music industry had a wee get together in Kristiansand back in June last year.
One of the outcomes reported was the recognition that monetising, instead of prosecuting, was a better idea. Is it just the wheels moving slowly or is the easy path involve a lot less work for a lot more short term gain?
The Mothership
What's this mean for WoW Glider, that's basically the same thing, only quicker?
To be honest, either she ignored her council, or got seriously bad advice, because she'd have been better off fessing to file sharing up from the start, and accepting the risk of what even the RIAA originally expected to be a much smaller fine.
I'm not siding with the RIAA, and I think the final fine was absurd, but she lost all hope of having the jury sympathise with her when she spouted her several crocks of shite about being hacked, and that made the fine possible in the first place.
Its a good thing this crazy fine has been reversed, but I have to admit I felt she brought most of it on herself by lying in court.
If she'd gone for honestly and asked for leniency based on the myriad questionable aspects of the RIAA's case, I think things would have gone a lot better first time round.
It's time to bribe....ummm...I mean fund the campaigns of incumbent congressmen. The judges are much harder to buy off.
Often Police Officers are reasonably doing what members of the public commonly do, out of a belief that someone is a criminal. If the belief is reasonably formed, I applaud them for it--the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.
But you run into real problems, too--I've heard stories from people who work in environments where, because the police expect there to be corruption, the police send in undercover people all the time and repeatedly try to get non-criminals to engage in criminal activity. It's one thing to notice someone is dealing drugs or traveling with drugs--it's quite another to ask them to help you transport those drugs by weaseling them into it. "Oh, you're flying down to such-and-such a city for your sister's birthday? Could you drop this package of mine off with an old friend?" That kind of thing.
Some cops behave better than others, and of course they have a job to do. It's hard to find the line, sometimes, but it's important to remember that there is one.
With the RIAA, obviously it's different: this is a private group copying something they've sold to you, saying you're the one who's copied it, and then suing you for it.
As an Artist, of course I think we need copyrights, because I spend months or years of my life writing a book. But going after a pirate (or a ninja) who probably wouldn't have paid for the book in the first place isn't helpful to me: it generates bad will, it's a bigger drain on society than the copy is, and I'd rather have the book read by someone who didn't pay for it than have it be not read by someone who wouldn't have read it otherwise.
I'm not saying I'd never enforce copyright, nor that people should be violating it. But suing everyone who does is not the right answer.
Thousands are enslaved every day. A River of In
None of this means a damned thing if the RIAA succeeds in getting their private gestapo made into an arm of the Department of Justice. Remember, they are pushing a bill to create a Federal framework for billing the US Government for both civil and criminal actions using Federal officers to do their dirty work. Even if you don't download music, you're gonna pay through the nose in tax dollars and the loss of more civil rights as the government bureaucrats try to ram through new laws to "support their mission" - mandatory ISP snooping and filtering, legitimized abuse of due process, lower standards of evidence, and a grab bag of laws to "protect jobs" (that's the rationale being currently used to get this bill passed). We're setting ourselves up for an Orwellian nightmare of epic proportions if this nightmare passes.
He's not saying that the Jury's verdict is wrong, he's saying that the decision was made on incorrect information. The fact that they based their decision on were wrong. If a Jury found a man guilty of murder but it turned out that the prosecution had hidden facts that would have exonerated the defendant, would you consider that "unamerican"?
Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.
I understand the point, but it doesn't apply. In the drugs case, the cops didn't legally manufacture the legal to posses drugs. The drugs in question were not legal. In the RIAA case, the recordings were legally created by RIAA members and then downloaded by the legal copyright holder. It would be different if the actual songs were illegal products not produced by RIAA members. If she provided underground detailed bomb or meth manufacturing instructions in an audio file, then the distribution of an illegal product may be the issue, not copyright infringement.
The truth shall set you free!
Ohmigosh! A nightmare of Orwellian proportions. Winston? Where are you? Are you okay?
the police shouldn't be prevented from, in the course of an investigation, pretending to be a regular Joe or Sally in order to see if someone is selling drugs, for example.
Yes they should, drugs shouldn't be illegal!
Falcon
Should there be a Law?
Look on the bright side. Western society is in terminal decline anyway. When archaeologists of the next great civilisation look back at us, the RIAA's efforts to turn corporate policy into federal law are going to be seen as something of a barometer... if they are even remembered at all.
I beg to differ. There's no doubt that noone's downloading your crappy product but your unlicensed investigators...
Also, lol - people still use kabaaaaaa ?
Requiem for the American Dream
This is not a catch-22 for copyright holders. I am a photographer, and I have prosecuted copyright infringement several time. I find EVIDENCE that someone copied the images illegally, by finding copies published in placed that did not license them. The RIAA already does this -- when they find actual unauthorized copies (like CDs at flea markets).
Watch as yet another RIAA lawyer makes a complete ass of himself... and in the Midwestern normal town capital of the world no less... why do i feel like Garrison Kieler should be commenting on this.
Quote: "The defense is arguing that if the investigators are not liable for downloading the content illegally, then the content must be authorized by the RIAA."
It is actually the other way around: the defense is arguing that SINCE the downloading was previously authorized by the RIAA as part of the investigation, no infringement took place! You can't illegally copy your own goods, or goods that you are authorized to copy by the copyright holder!
"Judge, let's just forget about this little part of the law, because it's very inconvenient for us..."
You talk about how the supposed "Justice" system really operates, and they call you a "troll."
Truly amazing.
So, genius, explain to me how you upload something without making a copy.
Typically it is legal to make a copy of material under fair use guidelines. Whether the copy is on a CD or on a server or some other medium is generally irrelevant. What is relevant is whether mens rea can be proven and whether the use clearly falls outside fair use guidelines. Upload stuff to a website saying "Warez here - come and get it" and you likely are committing a copyright violation. But simply putting files on a server is not an automatic copyright infringement. The issue is a lot more complicated than that.
Both sides copy, and as you say, the act of copying without permission is illegal.
This statement could not be more wrong. Copying material is not an automatic copyright infringement and both case law as well as legislation have strongly established this fact. All copyright infringements require the act of copying but not all copying is an automatic copyright infringement.
Undercover cops buy drugs and the state doesn't have to prosecute them for buying them.
Police officers are sanctioned by the government to enforce the law. The RIAA and other private organizations do not (and should not) share the same legal protections as a police officer sanctioned with enforcing the laws. The act of trafficking schedule 1 controlled substances is always illegal for private citizens. Making a copy of copyrighted material often is entirely legal under fair use doctrine. Furthermore selling controlled substances without a license is a felony whereas selling copyrighted material without any special license is frequently legal.
If the plaintiff had assistance from legally sanctioned law enforcement authorities who, in the process of a properly conducted investigation, concluded that there was reasonable grounds to suspect attempted copyright infringement then it would seem more likely to be acceptable as evidence. But just because some private investigator found "evidence" doesn't mean a court will or should automatically allow it to be presented.
Why couldn't investigators "illegally" download copyrighted material and still have it considered infringing on the part of the defendant, but not be prosecuted?
Because a private citizen cannot manufacture a crime against another private citizen. Without getting into the particulars of any given case is is easy to think of situations where the defendant was not attempting to commit copyright infringement. Making copies of copyrighted material is not prima facia evidence of copyright infringement.
This "Wow, modded troll for TELLIN THOSE SLASHDOT SHEEPLE LIKE IT IS, MAN!" routine you're so fond of doesn't fool anyone, not even yourself. You have never been a victim and you will never be a martyr.
The GP did specifically write "without permission". Under any reasonable readings of that expression,...
Don't confuse reasonable readings with legal interpretations. Fair use copying does not, under any circumstances I am aware of, require permission from the copyright holder. The GP post you refer to is at best ambiguous on this point and I see no reason why anyone should assume your broad interpretation of "without permission" since permission is not necessarily required.
The argument is that the copy was authorized, and therefore no infringement took place. I think I may see a flaw.
The MPAA-vs-2600 DeCSS trial introduced a concept to me that I had never heard or thought of. I call it "secret and complex authorization." Recall that 1201 prohibits you from bypassing a technological measure that effectively prohibits access without authorization, and since the judge in that case ruled that DeCSS violated 1201, it follows that DeCSS' author and users did not have authorization.
No DVD that I have ever seen, contains any text explaining whether or not you are authorized to bypass the tech measure. Nor does it contain any text or license granting authorization for you to bypass CSS in some ways but not others.
And yet, in order to play a DVD, you must bypass CSS every time. MPAA has not sued any user for playing a CSS-protected DVD that the user owns, on a Sony DVD player.
Ergo, the implication (though it is not explicitly spelled out anywhere) is that all MPAA members do authorize all their users to bypass CSS -- break the copy protection -- if they happen to be using a DVDCCA-licensed player when they do it. That makes sense and everyone knows it's true, but it is not written anywhere, and no user has any proof that playing a DVD is legal. Yet DVDs have been on the market for many years now and no one has been sued for merely watching one.
The conditions under which authorization is granted, are secret (never ever communicated from the copyright holder to the user) and complex (they apply to the user depending on whether the manufacturer of the player they're using (a third party) signed an agreement with Yet Another third party (DVDCSS), something which the user is not going to have any idea about). Any time someone plays a DVD, they don't really have any idea of whether or not they are violating DMCA, nor is there a way to find out, except to get sued. Authorization is never communicated.
This is the status quo and has been tolerated by the courts for several years now. It's the world we live in.
If I were the RIAA in this case, I would exercise the godlike power this implies. They don't need for the question of whether or not the PI had authorization to make the copy, to be a simple matter of black and white, and more than MPAA is required to make the question of whether or not watching a DVD is authorized, to be black or white. It is accepted that MPAA's granting of authorization doesn't need to be codified or explained in advance, and can be selectively applied to some parties and not others (e.g. when you use DeCSS, you and the DeCSS author are in violation, but the drive manufacturer and the computer maker are magically not in trouble). MPAA's conditions of authorization to bypass CSS, boil down to simply whether they like you or dislike you. It's really that simple, as logically murky as it seems.
Couldn't RIAA use this power as well? Can't they say that their PI is authorized to generally download RIAA's copyrighted works, but declare that a specific instance of downloading, was unauthorized? It doesn't need to make sense; it's their prerogative to grant authorization however they like.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Perhaps you can name or reference the bill(s) in question?
You're quite right - my apologies. Links here:
http://yro.slashdot.org/article.pl?sid=08/07/26/0340215
Look on the bright side. Western society is in terminal decline anyway.
OK... if that's the bright side-- dare I ask what the downside is?
The downside is that after the Roman Empire passed its peak, it took five hundred years for Rome to fall, and a further millennium for the whole thing to be extinguished. We have only a lifetime of decline to look forward to, as do our children's children, even unto the next 20 generations; only in a few centuries will this rotten carcass actually start the creative process of decomposition.
Sorry you asked? ;)
So the RIAA thinks they can disregard any part of the law as they see fit? Who do they think they are, the President of the US?
By all means, go after the most egregious offenders--but that is a relatively small bunch. As I said, I am in favor of copyrights, because of course artists need incentives to create and investors need incentives to invest in those artistic creations that are expensive.
But copyrights should be used to protect your work against exploitation, and even as stick to use if people refuse a request that they stop doing something that you don't like with your work. (They're welcome to criticize, of course, and they have a legal right to.) But the request should be made first. Not as part of a $5,000 settlement fee complete some rather restrictive terms. (Doesn't the agreement limit your ability to speak out against copyright law? I vaguely remember that.)
Thousands are enslaved every day. A River of In
...but fair use doesn't cover making backup copies - it's different.
Fair use certainly can cover backup copies as that would generally be a form of space shifting which was most notably upheld in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The legalese you quoted are examples (indicated by the quote "for purposes such as"), not an exhaustive list of what constitutes fair use.
There is a four part test to determine if a copy is fair use. Considerations include the "purpose and character of use" and "the effect of the use upon the potential market for or value of the copyrighted work". Despite the fact that the whole work is being copied, backup copies are highly unlikely to be viewed as copyright infringement absent some additional circumstances. Backups are unlikely to prejudice additional sales, diminish sales, or supersede the original work in any way.
It's fine for the copyright holder to explicitly grant the right to make a backup copy but as far as I know they would be on thin legal ground if they tried to prevent it absent some explicit agreement on your part.
It's a civil matter, not a criminal matter. Neither is illegal.
Not according to the Plagiarism Checker, it says "The owner of a copyright gets to decide who can legally make copies of that work. It is illegal to copy large sections of someone else's copyrighted work without permission, even if you give the original author credit." If that's not enough, then let's see what the Copyright Office says: "It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright." Notice the government itself says it's illegal.
Falcon
Should there be a Law?
Are you are saying the judge was wrong?
Falcon
Should there be a Law?