Obama DoJ Goes Against Film Companies

NewYorkCountryLawyer writes "If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism. Well here's a story that could make us skeptical and/or cynical about our skepticism and/or cynicism. Chalk one up for those who like to point out that, occasionally, the system does work. You may recall that the US Supreme Court has been mulling over whether to grant the film industry's petition for certiorari seeking to overturn the important Cartoon Networks v. CSC Holdings decision from the US Court of Appeals for the 2nd Circuit. This was the case which held that Cablevision's allowing its customers to make copies of shows and store them on Cablevision's servers for later viewing did not constitute a direct copyright infringement by Cablevision, there being no 'copy' made since the files were in RAM and buffered for only a 'transitory' duration. The Supreme Court asked the Obama DoJ to submit an amicus curiae brief, giving its opinion on whether or not the film companies' petition for review should be granted. The government did indeed file such a brief, but the content of the brief (PDF) is probably not what the film companies were expecting. They probably thought they had this one in the bag, since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ. Instead, however, the brief eloquently argued against the film companies' position, dismembering with surgical accuracy each and every argument the film companies had advanced."

Comments

If a laywer is any good...

[Anonymous Coward]

He knows the opposition's position as well as his so he can counter it up front. If he can't put himself in the opposition's shoes and argue against them, then they're going to suck.

These guys argued the other side forever, they *should* know how to tear that apart now.

Re:If a laywer is any good...

[Sun.Jedi]

These guys argued the other side forever, they *should* know how to tear that apart now.

If they knew how to tear it apart, and they did by my understanding of the brief, then they knew the original case was flawed. If the case was flawed, a reasonable person or persons would not attempt such a case in the first place with the intent on 'winning'. If they are not trying to win, then is it a fair and reasonable use of the courts for these ulterior motive shenanigans? Are there penalties for such behavior?

I guess I'm also wondering if this suddenoutbreakofcommonsense has implications in current or future litigation where the RIAA/MPAA or other content redistributors are the plaintiff.

Re:If a laywer is any good...

[soren202]

It wouldn't be slashdot if there weren't any such reactions.

4Chan has their lolcats, slashdot has their kneejerk desire to punch people they disagree with. It's the natural order of things.

Re:If a laywer is any good...

[Nefarious Wheel]

The two other government briefs of which I am aware in this type of litigation, which have been submitted by the government subsequent to the RIAA lawyers's going to work for the DOJ, were both quite poorly done, and took wild and crazy legal positions obviously calculated to please the RIAA overlords.

I am beginning to suspect that there are more un-bent, ethical legal professionals out there than my early upbringing seemed to indicate. We are such children of the meme-stream...

It's difficult to consider at times that professionalism sometimes means being loyal to your employers until you can beat a retreat. I suppose that must be a part of the legal profession. At least some percentage of the lawyers out there went into the profession on the belief that they could right wrongs, and it's beginning to look like some people kept the faith all the way to the top.

I am now wondering if some of those DOJ ex-**AA legals didn't weep at the prospect of being able to escape.

All in all, I found that to be a nice piece of news. And I'm beginning to harbour some nice suspicions.

Good call

[PktLoss]

Can someone mod those lawyers up? +1 insightful.

Indeed.

[viyh]

It's nice to see things happening the way they are meant to happen. While the DoJ employees are not elected by the people, they are appointed by people who are. They are, in theory, supposed to represent the will and needs of the people, not corporations or lobbyists with money. Hopefully this will open up the debate about rewriting copyright and property laws in the age of information and the internet.

Re:Indeed.

[sumdumass]

It's nice to see things happening the way they are meant to happen. While the DoJ employees are not elected by the people, they are appointed by people who are.

Your more or less right here except that the vast majority of DOJ employees don't change jobs when new leaders come in. It's entirely possible that people working for President Carter are still employed at the DOJ and remained employed under different presidents and parties.

They are, in theory, supposed to represent the will and needs of the people, not corporations or lobbyists with money.

Here, you are just wrong. The DOJ is supposed to enfore the law period. They don't represent anything but the law as it is written and how courts reconcile that to the constitution. The DOJ can push for an interpretation the administration has laid out if there is shacky grounds but they in no way "reflect the will of the people".

In fact, the federal government was never indented to address the will of the people directly. The federal government in the US is only supposed to represent the states in matters of state (foreign relations) and matters between the states with a limited few other things specifically written into the constitution. You can see how obvious this is by simply reading the constitution. The senate was originally appointed by the state, the president was/still is appointed by the state, and the house of representative which all tax raises are supposed to originate in was the representation of the people. The idea was so that the people had a say in government not so that government served the people. The federal government serves nothing but the offices they hold. Now don't get me wrong, the office covers the people but they also cover so many other things like corporations which provide jobs, trade between the states and with foreign countries and so on.

You also need to understand that a: corporations are nothing more then collections of people who invested in a concept but are shielded from it's performance to some extent by their lack of participation in the company. b: Lobbyist are nothing more then people who have familiarity with the congress critters and take points directly to them instead of leaving it to them to figure out on their own. There is nothing wrong with lobbyist because they allow single representation of groups of people with no political clout. Without them, no one's voice will be heard more, nothing will be different, except those groups will have to spend the money directly on getting the congress critters attention some other way instead of giving it to someone who already has their attention.

Re:Indeed.

[mmaniaci]

There is nothing wrong with lobbyist because they allow single representation of groups of people with no political clout

How is that a good thing? The richest get to buy political clout and change the gov and the masses still have no say.

Re:Tactical Deception

[FiloEleven]

I agree. This is a lot like Roman bread and circuses, but we've advanced a lot since then.

Ladies and gentlemen, may I present to you the Meta-Circus.

Tricky things, lawyers.

[dominion]

"since some of the very lawyers who have been representing them have been appointed to the highest echelons of the Obama DoJ."

Sometimes people just need a reminder that there is no grouping of people with less principles than Lawyers. We made the assumption that, since RIAA lawyers were hired to the DOJ, that they would find in favor of the RIAA. But it seems that lawyers are almost always megaphones for who is signing their paycheck.

And in this situation, it worked out in our favor.

Re:Tricky things, lawyers.

[James_Duncan8181]

"Sometimes people just need a reminder that there is no grouping of people with less principles than Lawyers. We made the assumption that, since RIAA lawyers were hired to the DOJ, that they would find in favor of the RIAA. But it seems that lawyers are almost always megaphones for who is signing their paycheck."

Mmm. Or people who are doing their best to protect the interests of their clients? A lawyer must make the best arguments available for their client, but the ruling is not something they can be held responsible for. The system of justice works best when both sides present the strongest form of their argument, allowing the issues to be debated by those in the judicial role (who you can hold responsible for their judgments).

Or would you rather your own counsel failed to advance your best arguments because he personally thought you were guilty?

Re:Gov representing reality is rare

[maharb]

That is like blaming car accident deaths on seat belts(not wearing them/them not existing) rather than bad driving. Lack of regulation is not what killed the global economy. Regulation could prevent it from happening again, maybe, but that doesn't mean a lack of regulation caused anything.

If everyone involved in the lending crisis had done a little homework before buying the loan packages they would have realized that they were paying too much. It was their own free will to buy the crappy loans, no one forced them. Regulation is just forcing people to do the homework + making people jump through more hoops.

Re:lawyers are mercenaries

[ColdWetDog]

Grrr. This always pops up here. Lawyers are supposed to represent the client's interest. If the client is RIAA, they are supposed to make arguments that support RIAA's goals and aims. If you're client is the Federal Government (and thus, the interests of the 'people'), you are supposed to argue their views.

What the lawyer actually thinks is correct doesn't have a whole lot of traction here. If the clients arguments or interests are so repugnant to the lawyer that they feel that they can't represent them successfully, they are bound to tell the client, but that's about it. No, it's not perfect, not a great system but it seems to work better than anything else we've come across.

A lawyer well versed in a particular case dammed well ought to be able to argue both sides of the issue. It's what they do for a living.

Re:Gov representing reality is rare

[Anonymous Coward]

That's a really good point. That's why I advocate turning over all economic policy making to hyper-intelligent, omniscient, perfectly altruistic robot overlords.

Oh, we don't have those yet? Guess we better go with that "regulation" thing.

Re:Please let this be a trend

[decoy256]

This needs to be the main focus of digital rights, at least right now. When I buy something, I should have the right to transfer it to any media form I deem proper for my own uses. Heck, if I wanted to transfer my DVDs to BetaMax, I should have the right (of course, the reverse is also true and the more likely/useful application of this theory).

I expect we'll see more of this

[petrus4]

I was initially skeptical about the alleged, lauded virtue of Barrack Obama, but the more I see of his actions, the more I'm forced to concede that I was wrong, and that in this case, water genuinely has flowed uphill, to use that analogy.

Obama's level of integrity is genuinely intimidating, for the simple reason that an American President is, at this point in history, expected to be a thoroughly amoral and corrupt human being. That he isn't, is rightfully seen almost as a violation of physical law. Bush's degree of evil had almost become reassuring, purely because of its' level of routine familiarity. When he attempted to do something monstrous, it was entirely expected.

Even with Bush aside, it is also a paradox when considered in light of the dynamics of political power in general. Reading Machiavelli and virtually every other treatise on the subject, one is left with the overwhelming conclusion that the single greatest prerequisite of political power is amorality, to the extent that it can be said that an individual's degree of political power will be directly proportional to their level of amorality.

Given this, Dick Cheney is perhaps a more likely example of who we would ordinarily expect to hold the office of President, morally speaking, than Obama. Cheney is, according to virtually every depiction of him, a consciously, willingly, and indeed enthusiastically evil individual. He is, therefore, far more consistent, both from study of political theory in general, and observation of American political history in particular, with the type of individual who I would expect to hold the office of the Presidency.

It is said that within a democracy, a people get the leader they deserve. I'm not entirely sure what Americans have done recently to deserve a leader with Obama's comparitive level of decency, especially given that Bush was so far to the opposite, but even for us outside America, Obama's integrity is certainly very welcome.

It will be fascinating to observe just how far outside of the established, conventional rules Obama is permitted to go.

Re:I expect we'll see more of this

[cheros]

an American President is, at this point in history, expected to be a thoroughly amoral and corrupt human being

I find it thoroughly depressing that that seems to be the prevailing opinion. That in itself just shows what a tremendous amount of damage Bush has not only caused to the IMAGE of the US, but to the US itself. Having said that, they had willing assistance from the UK New Labour government in this, so I hope the current "it was within the rules" expense claim abusers get chucked out on their ears soon.

I've seen it in the UK, no sooner did they step through the doors of No10, out came the efforts to switch off as many controls as they could get away with so they could fill their pockets as quickly as possible. Regulators? Take away their power. Competent people in government? Lose them to consultancies, then re-employ them and pretend that's the same thing (try saying "no" as a consultant if you have a family). Protests? Tarnish those who do, and bury it under spin. The worrying thing is that it has at both sides of the ocean worked so well that it has taken TWO terms for the damage to show up. And then they vanish, publishing "memoirs", hit the speaking circuit or, in the case of Blair, apparently go and work for the people who stand to profit from the collapse. No, I don't believe in coincidences.

The main problem with such an attitude is that it flows downwards. As soon as industry sees this happening, they realise it's time to do the same because farming the economy to death MUST lead to a crash. so everyone was trousering wadfulls of cash while the going was good. Screw the man in the street, he's there to take the hit when it goes wrong. So it has, and he does.

If Obama is tring to do The Right Thing (and so far, the signs are good even though he has to do this very slowly) he must alreday have discovered that this will take more than the time he has, even assuming he can serve TWO tems. I'm going to be very interested in what he does for long term planning.

Re:Oh really?

[NewYorkCountryLawyer]

If one attempted to distill a single prevailing emotion or attitude about government on Slashdot, I think it is fairly arguable that the winner would be cynicism or skepticism.

Yeah right. Like we're expected to believe what you think about slashdot's opinion. You know, it's summaries like this that prove we can't expect much change either from the government OR slashdot... PS: For the HUMOR impaired, the above was meant to be a skeptical, cynical comment. But THIS bit is actually sarcasm.

I am "humor impaired", and you had me there.

But seriously, the comments to my story so far demonstrate that this welcome bit of good news does nothing at all to dampen the raging cynicism and skepticism which seem to be the prevailing winds of Slashdot.

Re:Gov representing reality is rare

[Anpheus]

Fascism is supreme belief in the power of the state and/or the party and that if you're "against them" you're "against ."

If you're not with us, you're AGAINST US!

If you don't like Bush, GET THE FUCK OUT OF AMERICA!

If you don't like the Patriot Act, MOVE TO A DIFFERENT COUNTRY!

If you're against the war, YOU'RE AGAINST THE TROOPS!

That's fascism, and those are all quotes I've heard from Republicans, either personally or have seen at demonstrations on YouTube. None of those quotes is made up.

That's fascism, FishWithAHammer. Obama asked GM's CEO to step down and be replaced. It wasn't forced, just like we weren't forcing them to take billions of dollars of funds that would protect America's stake in the international automotive industry. But hey, if they wanted it, they had to make some concessions.

Unlike Bush, who was totally in favor of just giving away ten times as much money with no accountability whatsoever.

Nobody did force them

[coryking]

But you'd be a fool not to play the scam like everybody else. The rational choice for a person was to treat their home like an ATM, after it was a "sure bet" and if they didn't, they would regret it. Even if they knew it was a scam, they figured if they got screwed everybody was screwed so why not play?

In other words, good regulation can keep a bunch of individuals who are making rational decisions from screwing up the entire system. Sometimes what is right for one person is harmful to the whole. The lending crisis is an example of that.

Re:Pretty big 2nd circuit opinion

[NewYorkCountryLawyer]

Maybe we should appoint the judge whose opinion this is?

We?

Re:Gov representing reality is rare

[geekboy642]

Any argument that requires a strong majority of the populace to be an intelligent and rational actor is flawed. At least half of the human race falls below the mean intelligence level. When was the last time high school taught a course that detailed how to get a loan in a safe way, or how to sensibly manage credit? Many high schools don't even require civics courses, preferring instead a selection of "multicultural studies", "introduction to computers", and "remedial English grammar".
Any argument that requires a strong majority of businesses to act in a completely ethical fashion, without external pressures, is flawed. Corporations exist only to extract wealth. Thanks to the de-regulation of the last couple of decades, businesses have been free to take any action that improves the bottom line. They loaned to people with no income verification, to people who were blatantly unable to repay the loans. Predictably, many of these people defaulted on their loans. The credit industry cannot function when the default rate erases any possible profits, and eats into capital besides. This is a case of individual businesses acting to harm the environment (the industry in which they work) for their own selfish gains, a true "tragedy of the commons".
A rational and educated actor would have been able to see 5 years into the future, and know that their income would not suffice for them to manage the repayment.
A rational and educated government would have been able to look back to 1929, and draw lessons from the boom time immediately before the crash that spawned the great depression.

Re:Tactical Deception

[Anonymous Coward]

Dude, are you serious?

The government does something bad, and it's out to get you.

The government does something good, and it's a "tactical deception", designed to lull you into a false sense of security, and it's out to get you.

Your theory is not falsifiable. And you get a 4, insightful? This is supposed to be a science-oriented discussion board; we should know better.

Re:Tactical Deception

[artor3]

Are you joking? Let me fill you in... Obama doesn't give a rat's ass about copyright legislation. He has a nuclear-armed Korea threatening war, a nuclear-armed Pakistan fighting for its life against the Taliban, extreme tensions between Israel and Iran (one of which has nukes, and the other's probably working on it), two wars of our own to deal with, a collapsed global economy, and on top of that, he still probably wants to get his universal health care plan rolling.

He's not in bed with the **AA the way a lot of Slashdotters like to think. He's not out to get them either. He's simply got bigger things to worry about. This decision was undoubtedly made at a lower level. If anything, he glanced over it quickly and agreed to the arguments put forth by his lawyers.

Re:Gov representing reality is rare

[NewYorkCountryLawyer]

Big government is bad.

That's the Reagan myth which has been handed down, and which has caused our present crisis, that it's okay to have big corporations but not big government. It doesn't work that way. If you're going to have mega-corporations running business, you need big government to regulate them.

Re:Please let this be a trend

[Naturalis Philosopho]

Hear hear! Wanna know why Blu Ray isn't catching on? Because I (like many others) have one player in my house that can play those disks. When I get a movie, I often see the DVD sitting right next to the Blu Ray, and I think "well, DVD looks good enough, it's $10 cheaper, and I can play it in any room in my house and on the road in my computer." The Blu Ray sits on the shelf while the DVD goes home with me. It's only by making tech ubiquitous and easy to use, and by changing the laws to make the content that we buy/pay for actually usable that products get sold. DECSS probably sold more DVDs than any marketing campaign ever... and anyone else notice how free, recordable, over the air television (paid for with embedded-but-removable commercials) is catching back on?

Re:Gov representing reality is rare

[Anpheus]

http://www.google.com/search?rlz=1C1GGLS_enUS327US327&sourceid=chrome&ie=UTF-8&q=define:fascism

A lot of people disagree with you. Fascism is not "primarily" an economic descriptor. Fascism has in fact, little to do with socialism or capitalism. It's a political ideology that the government is best and that they can cure our ills. This can take the form of extreme pressure or crimes against political dissidents, or it can take the form of state-owned monopolies, or other things. Fascism starts with a single kernel of an ideology: our way is best, you aren't part of us, so get the fuck out of our way or join us.

That's it. It's patriotism taken to its most extreme. In Italy, it meant if Benito Mussolini contradicted himself, he was right both times. It means that whatever the government does is right, and if you aren't for it, you're against it and you're hurting (pick at least one): progress, the future, the children, democracy, the nation, the system... Etc.

The extreme nationalism encourages people to accept things like government ownership of things, because after all, if you're not with them, you're against them. And the troops. And the flag. And whatever else.

And let's be honest, Bush's supporters (note I did not say Bush himself) were the closest to fascists this nation has ever had. They were those hyper-nationalistic people you refer to.

Re:Tactical Deception

[NewYorkCountryLawyer]

He's not in bed with the **AA the way a lot of Slashdotters like to think.

Evidence indicates otherwise.

I have been quick to point out 'tea leaves' suggesting that he was being overly generous to the content cartel in his appointments. And I pointed out the 2 misguided, fervently pro-RIAA, briefs his DOJ filed in 2 'RIAA v. End User' cases (if I weren't a professional I would call them "dumbass", but of course I would never use such a term). But fairmindedness requires us to see this new filing, which is at the United States Supreme Court level, as evidence to the contrary. This brief directly contradicts the things the pro-RIAA appointees argued in this very case.

As far as I am concerned, if every brief Obama's DOJ files is as fair minded and scholarly as this one was, I will not care if the conclusions drawn by the brief agree with, or disagree with, the conclusions I have drawn.

All I ask for is fairness. A lawyer who disagrees with me, but does so with integrity and honor, is okay in my book.

Re:Gov representing reality is rare

[NewYorkCountryLawyer]

What we probably really need is smaller corporations. Another part of the Reagan legacy was to relegate antitrust enforcement and securities law enforcement to a back seat. We need a strong dose of government to start moving away from monopolization, anticompetitive practices, and financial gamesmanship. And to move towards investment in the people who live here, with health care, education, child care, housing for the homeless, etc. Then when we have made some progress in those areas, we can start talking about reducing the size of government. But not until then.

Re:NO

[DarkOx]

I wish I had mod points. This weak minded PC world of moral relativism must be abolished. Copyright holders demand to be taken seriously and insist others listen to their arguments. I DONT NEED TO, your arguments are worthless because the position you already occupy is outrageous. The stated intent of the law was to promote innovation. Being able to profit from one work for a life time does not do that, it eliminates the need for innovation almost entirely.

Return to the bright bright line and we can have an intelligent discussion listen to each other and hash out the specifics, till then I am for damaging the strength of copyright law in any possible way, including making completely impossible to enforce on a technical level such that everyone is a violator and the entire concept becomes a sad joke. Chances are that we can't come back from that point, which does not bother people like me much so maybe you pro IP types aught to think about giving us some concessions because there are more of us and eventually we will defeat you; yes some of us are willing to whip others into what amounts to an unruly mod to do that.

A power struggle is an awful hard fight to win, once one side has excepted anarchy as satisfactory outcome, and a large enough group of people start to fell that would be preferable to your continued control; that is whats happening slowing in the world of IP. "Information wants to be free," is catching on.

Re:Tactical Deception

[gad_zuki!]

Perhaps the real bread and circuses is all this whining about copyright while your nation fights two wars, has out of control military spending, locks up non-violent drug offenders, arrests medical marijuana growers, denies rights to gays, is in the middle of an economic meltdown, has out of control gun laws, etc etc etc, yet here we are arguing the minutia of copyright law. If anyone is guilty of deceiving the public with inconsequential shit, its us geeks, not Obama. Whining about copyright and quoting Ayn Rand is not how you fix things. Bread and circuses indeed!

Re:Afro-American Racism Against Whites & Asian

[Runaway1956]

I have no need to hide behind the AC mask. Whoever spreads this trash are pretty desperate. OF COURSE some blacks voted for Obama, just because he's black. It's no different than all the white people who voted against him just because he's black. I happen to be non-black. I'm a veteran, for that and some other reasons, I really WANTED to vote for McCain. So - why didn't I? Well - McCain was far more likely to get my SONS killed than Obama. McCain wouldn't have exactly followed in Bush's steps, but he would have followed closely enough that it wouldn't have made a tremendous difference. Do I really CARE that our president is a funny looking nappy headed non-white? Not much. I voted for him because he understands more about world culture than McCain ever did, or will. The man has lived in places that McCain just flew over in a fighter jet. Tremendously different perspective. The black guy can relate to the world, whereas McCain used the world as a background on which to acquire targets. McCain may not be a pure neocon, but he does believe in much of the agenda of the New American Century. It is McCain's mission to spread corporate control around the world, supposedly for the benefit of Americans, but really for the benefit of those wealthiest 2% of Americans who already have more money than they can ever spend.

With one son in the Army, and one son in the Navy, I really feared for their lives with Bush in control. Obama may or may not commit to some action which puts their lives in peril - but I'm fairly confident that the purpose of that action WILL NOT BE to enrich our wealthiest 2%. That is exactly what Iraq accomplished, with the neocons in charge.

While you bitch and belly ache about the "nigger" in the White House, I breathe a sigh of relief. My own funny looking kids (sans the nappy heads) are far more likely to live long enough to give me some grandchildren to play with.

Bottom line? Fuck off, you cretinous redneck!!

Divide and Conquer?

[schon]

When Obama was elected, one of the things that was most apparent was his understanding of technology and related issues. When he appointed the ??AA lawyers to the DOJ, there was a large outcry from people who believed he was being influenced by his party's traditional media kowtowing.

The specific lawyers who represented the RIAA and MPAA, and are now in the DOJ, are recused for two years from working on any of these types of matters. So they are not supposed to have had anything whatsoever to do with this brief. And from all appearances they did not

I'm wondering if the ??AA lawyer appointments weren't designed to "take them out of the game". If so, it's a brilliant move, IMHO. :)

Re:Tactical Deception

[evilviper]

Perhaps the real bread and circuses is all this whining about copyright while your nation fights two wars, has out of control military spending, locks up non-violent drug offenders, arrests medical marijuana growers, denies rights to gays, is in the middle of an economic meltdown, has out of control gun laws, etc etc etc, yet here we are arguing the minutia of copyright law.

Good job. Dismiss his bullshit logic with some even worse false logic of your own.

You're suggesting that if we all drop everything else, we will be able to solve all the major problems in the world, and just work our way down the list... Reality is quite the opposite, really.

You can stop bathing until you've achieved world peace, but the time saved won't gain you world peace, and you'll just go around stinking.

Try this... Don't bother changing the oil in your car. It's not important enough. Just keep going until your car blows up. THEN your car blowing up will be important enough to merit your attention.