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Copyright Scholar Challenges RIAA/DOJ Position
NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."
The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy.
How can the media companies been seen as akin to the small guy and the individual consumer the BIG guy?
By Benjamin goggles of course!
Did you ever wake up in the morning, with a Zombie Woof behind your eyes? -- FZ
So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?
I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.
Ray Beckerman +5 Insightful
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
Except for that whole Eldred v. Ashcroft fiasco described in Lessig's Free Culture.
Let's play video games with mailmanZERO
Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost
According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.
True, but does rationalizing necessarily equate to sinning^H^H^H^H^H^H^H committing the crime?
If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No.
Hmm. You know, I quit buying music shortly after I quit listening to "free" music. (Broadcast radio. Various reasons I got turned off the radio stations.)
I've got a few albums I bought because I thought I liked the band. About half of those, I decided I no longer liked the band, even the the songs on the albums that made the charts were the ones I listened less to. I've got a few albums I bought on recommendation, but none of those (except the classical stuff my Mom recommended) ended up being albums I listened to. Most of the albums I've bought, I bought because I wanted the songs on them, because I had heard the songs on them. Taped the songs off the FM.
I suppose, maybe I wanted to support the band. More like I wanted to spend money on something I liked, and I recognized that buying tapes and recording off the FM did not really save me all that much money. Having both the tapes and the albums was much more flexible, if time-consuming. Made a lot of dance mixes, some that my friends liked and some that they didn't like. But my friends ended up buying the music I played at our church dances. (I'm not sure I think that's a great thing, but it demonstrates the principle.)
They'd buy some music. Not nearly as much as they're willing to take for free, but some.
Lemme fixat for yah:
They'd buy some music. Not nearly as much as they're buying now when they can listen for free if they want to, but some. Maybe.
The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.
Well, if by honest you mean recognizing and telling the whole truth, yeah.
But focusing only on the damage is even less honest.
Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.
Uh huh.
I don't know about you, but, to be honest, I am just not interested in the "music" the big companies promote any more. The only way I could be persuaded to buy it would be to hook me on it. That means making^H^H^H^H^H^H letting me listen to it. Free.
And I know a lot of people who are like me. Normal people. Functioning members of society people. Not geeks, not particularly fans. The majority of the people I know.
And most of the geeks I know, the ones who do most of the freeloading, are precisely the ones who are introducing me and the majority of the people I know to music. (Like I used to introduce my friends to music.)
Sure, maybe free downloads do some damage.
Shutting off the free downloads does a lot more damage.
(I must admit, if the big "rights" management companies can just be convinced to keep their laws away from the indies, I'd just as soon they destroy themselves by closing off the loopholes and sinking into their legal black holes.)
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.
Well Done!
Not my normal type of music, but that was an interesting piece of work, having the storm in the background. Calm and soothing, yet with a dynamic tension that keeps it from going stale halfway through. (it reminded me of something I could have expected from Carlos Santana)
This is a good example of why all of the "Oh No! The music is dying!" crap from the RIAA and their shills runs in one ear and immediately out the other with me.
There are just too many people out there like you, who will make music for the enjoyment of the music...and don't mind sharing.
Thanks for both the attitude and the music. You made my day with that!
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)
The RIAA's tactic is to intimidate the unknowing into capitulating without a fight. All it costs them is a a few bucks for a secretary to mail out the letter. Once they get into 'real' lawyering with judges and opposing counsel, then it starts to cost real money. That's why they either get a quick settlement or they cut and run.
Sig this!
I'm not saying it's okay to copy when the artists say they don't want that.
Yeah, others are saying that, but I'm not.
I'm pointing at a couple of big gaps in the argument. First, the "rights" organizations no longer really protect the rights of the artists. What they are doing is wrong. It may be legal, but, if it is legal, it is still based on bad, unconstitutional law.
They could have approached the copying issues in a much better way, if they had simply recognized the realities of the market.
Zeroeth: you can't sell music you don't let people listen to. On their own terms. (That's why I quit listening to radio. And it's why I quit listening to music, except what my kids play, except what the school band plays, except at church, that kind of stuff. Even the indies are mostly not putting out music I want to hear any more.)
Artists have the right to be prima-donnas. We don't need to think it's an insult to call them prima-donnas, but we don't have to think we owe them a market they aren't willing to get themselves into.
Getting into the market requires letting people listen. For free. On the individual listener's terms.
You cannot mechanically suppress the free downloads and keep the free market healthy. You can't shut off the bit-torrents and keep the free market healthy.
The solution was/is plain. The RIAA should be cooperating with Pirate Bay and the others, to use the free downloads as ways to expose potential customers to the artists products. That does mean that artists have to work to make a living, producing more, producing more of different kinds of things, maybe even doing things besides their art. That's always been the way it is with art.
Historically, art has been one of the hardest ways to make a decent living. That is why art is art. That is what separates art from craftsmanship, and, really, what separates craftsmanship from assembly-line manufacturing.
It's an unfortunate fact, but artists really have to starve and scrape by and be rejected and all that to produce real art (of a general nature). Or they have to be willing to produce less "perfect" art and live by some other means, which is a road to a different kind of perfection.
The fact that society has been traditionally way too hard on failed artists is a separate question, and that cannot be addressed by anything that the "rights" organizations are presently doing.
There are lots of things wrong with the economy, but shutting down the markets is not how to solve the problems.
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.