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Sotomayor's Position On Copyright Damages
Too Lazy to Login writes "Wired reports that, based on her previous decisions, Sonia Sotomayor will likely affirm high damages (read: RIAA excessive) in cases where copyright claims are at issue. Good thing I'm not a betting man, because I'd have guessed the exact opposite." We discussed the nominee's cyberlaw record in general last week.
People who don't understand the concept of diminishing return shouldn't be allowed to graduate high school, much less become a judge.
http://www.foxnews.com/politics/2009/06/01/sotomayors-record-environmentalists-hope-business-leaders-pause/
love is just extroverted narcissism
Yup, seeing as he already put some top RIAA lawyers into top DOJ spots, who's surprised? Really, raise your hand if you're surprised at Obama's copyright preferences. Come on, we won't laugh... Hard
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
Yeah because no Republicans have ever supported DRM, the RIAA/MPAA and the DMCA. Oh wait, only 1 Republican obstained from the DMCA vote and the rest all voted for it in the Senate. Oh and I won't even bring up that the DMCA was introduced in the House by a Republican and considering how the House at the time had a Republican majority that they would have had to have backed it in a significant amount for it to pass. And I also won't mention how in 2003, Republican Mitch Bainwol become the CEO of the RIAA in 2003. Yep those Republicans sure are anti-DMCA, DRM and RIAA/MPAA. *rolls eyes* Or maybe we can stop with the stupid rhetoric and recognize that both parties are in bed with the copyright interests.
Rantings, indeed.
To wit:
Are you aware of Sotomayor's dissent in which she defended the 1st amendment rights of a white NYPD employee when he was fired for having sent blatantly racist and anti-Semitic replies in response to charity requests he received in the mail?
That she ruled against the plaintiff in 80% of race discrimination cases?
That in her famous speech she also said stuff like:
The horror!
I am so sick of people taking one fragment of a speech or one ruling and rushing to judgment based on their own biases and agendas. Take a deep breath. Read Ricci. Read the Pappas dissent. Then let us know what you think.
Simple Unexpected Concrete Credible Emotional Stories
Granted, the damages do seem high, but these are only applied where the conclusion has already been made that a proper case was brought about and the crime proven without a reasonable doubt.
Why focus on this after-the-fact nonsense? In a perfect judicial world where only copyright violators were convicted, I would whole-heartedly support brutal monetary punishments to these self-entitled jackasses.
But in reality, shouldn't this crowd-sourced angst be directed at the flawed proceedings and discovery that is the real issue here? Please, for everyone who cares about "justice" and fair use and other copyright issues, let's focus the energy, however fickle it is, on what really matters here.
I read the script, and I think it would help my character's motivation if he was on fire. -Bender
Wired reports that, based on her previous decisions ...
Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:
"A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"
Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement? It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.
eldavojohn, you are quite right to be skeptical of the Wired article. In fact, there is no basis for the author to have drawn the conclusion he did. The Top Rank case is a garden variety, 'bar and tavern' case, in which the statutory damages awarded are usually 2 to 4 times the actual damages. The Magistrate's decision was below the normal range, despite his finding of wilfulness. Judge Sotomayor merely raised the award to within the typical range. It appears that she awarded between 2 and 3 times the actual damages.
In RIAA-land that would translate to from 70 cents to $1.00, as opposed to from $750 to $150,000.
No reason in the world to think Judge Sotomayor would disregard a hundred years of Supreme Court precedent and dance to the RIAA's tune.
Ray Beckerman +5 Insightful
The folks at TechnicallyLegal (disclaimer, I'm a writer and podcaster there) wrote up a post as to why her decision in the copyright case will have little bearing on the outcome of the RIAA cases. And why her reasoning there isn't really indicitive of what her reasoning may be in those cases.
http://www.technicallylegal.org/de-fud-sotomayors-stance-on-copyright-infringement/
Modular Redundancy--Because 4 out of 5 Nodes agree
A politician is a politician because he has two skills, one is his ability to use convincing rhetoric and the other is putting that rhetoric to the defence of the powerful, no matter they be the military, industry or some other interest group.
No, they don't defend the powerful with words. At least, Saddam didn't die of their words after he offered to sell oil for EUR too, instead of USD only.
Um, are you serious? Hilary Clinton is Secretary of State .
Uh, don't listen to the news do you?
I'm pretty sure he's talking about the speech where she said a female latina Judge would come to a better decision (on the basis of her being female and latina) than a white male judge.
Now, I fell off the political correct bandwagon a long time ago, but I do believe that the bulk of the people that make up the Democratic party would've had themselves a little uproar if John Roberts had said something of the lines of "I think a white male judge can come to a better informed, fairer decision than a black female judge".
It is not "legislating from the bench" to declare a damages award, authorized by a statute, to be unconstitutional. The fundamental law of the United States is its constitution. When a statute violates the constitution, the judge has to say so. That is not legislating, that is applying the law. The US Supreme Court has said that "punitive awards" which are unreasonably disproportionate to the actual damages are unconstitutional.
Ray Beckerman +5 Insightful
No, they don't defend the powerful with words. At least, Saddam didn't die of their words after he offered to sell oil for EUR too, instead of USD only.
Oh so THAT'S why Iraq was invaded... Silly me thinking attacking two neighbors, genocide, religious persecution, utter failure to comply with terms of surrender, and last but not least intelligence claims of WMDs, etc had something to do with it. Fascinating.
I think for some folks, it will set in when their private insurance perks above whatever standard the government sets is stripped of it's tax break.
For the elderly, it'll set in when they go to have their glaucoma fixed and put on a 1-year waiting list like they are in the UK, or a 50 year old goes in for a kidney transplant and is told he's too old to receive a transplant under the government health plan or the elderly patient with the broken hip is told that they are too old for the government to pay for surgery since the actuary tables says they'll most likely be dead in 5 years anyway.
Because GHW Bush thought it would rip his coalition apart *and* fail to achieve the goal. As for North Korea, they're living proof that once you HAVE nukes, you're pretty much immune as long as people think you're crazy enough to use them on Tokyo.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
VERY different than what you imply. Tell me, how is what she said any different from what Alito said? Where does she say that a Latina will make better decisions? Nowhere, and that is not at all what she was implying.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
1. The Supreme Court, in its Gore decision, did not distinguish between statutory damages or punitive damages. It referred to "punitive awards", it cited a Supreme Court precedent involving statutory damages, and it based its conclusion as to an acceptable multiple on an analysis of statutory damages.
2. The 8th amendment argument has to do with the argument that it is really a criminal statute in sheeps' clothing. The body of law to which I refer is under the 5th amendment, due process, concept.
Ray Beckerman +5 Insightful
http://healthcare-economist.com/2006/07/27/medicares-true-administrative-costs/
I'll summarize: Medicare "administrative costs" are within about 3-4% absolute points of private insurance administrative costs.
Additionally, fraud is rampant in Medicare, which ultimately costs more than a little bit of administrative overhead.
Finally, benefits for Medicare have been growing at an unsustainable rate since it's inception. I do not think you want a program that grows 3x faster than the rate of inflation as your benchmark program for long term medical costs reduction.
There are actually a few other options that can happen. Some of them are more likely to happen too.
Right now, the government takes a rolling account of medical costs in different areas, creates an average and a payable amount based on that. When they take control they can just lower the amounts and force nurses, doctors, to take less of the pie, cause hospitals to close down decreasing overhead, and redirect many of the medical research grants to cover expenses.
Alternatively, they could outlaw private insurance coverage and force people into the public system or pay out of pocket then mandate the maximum pay a doctor or nurse or staff can make then limit the maximum profits they can make if they participate in the public system. This right here is how they get around insufficient medicare payments currently. If they accept government medicare-medicaid payments, they have to fit their bill within a list prices they figured for procedure and the area your in. You then have to waive any overages if your bill is more without justification.
That is one reason why medical costs are so expensive. Hospitals, doctors, and everyone in between found out long ago that if the uninsured regular costs were as high as possible, the averages would go up. Most insurance companies also attempt to use this list of approved payments in order to negotiate their costs. I know a guy who broke his ankle recently. They need to install pins to fix it. His original hospital bill was over $15,000. When they found out there was no chance in hell of him ever paying it, they adjusted it to just under $3,000 if he agreed to making payments of a certain amount per month.
It's a racket, one that Obama's wife (and presumably Obama himself) knows all about. When he was a state senator, a hospital created a job position making a over a hundred grand a year in hopes to get Obama's support on some grant money for the hospital to treat the poor. When he became senator, her salary nearly tripled. After it came through, the hospital started rejecting the least profitable patients from it's emergency room care. Of course that job has since been eliminated now that she is the fashion first lady. Most first ladies strive to be more but I guess she didn't have to do much at the old job but stay married to Barrak and keep him happy enough to help the hospital out in free money.
BTW, this administration has a way at hiding the intent of what they are doing. Take the recent GM buyout for instance. They were claiming that everyone should buy a new fuel efficient car and evern pondered the idea of a government payment for the trade in of your older less efficient car. Then the recession hit, the lending crisis, and not to many people can afford a new car right now. So they blamed GM's and Chrysler's woes on building Big SUVs which people were buying instead of the more fuel efficient offering that they still sell today. Now they are going through bankruptcy, the government under Obama's control, purchased controlling interest, they are closing a lot of shops down and guess which ones were the first to be cut, the ones which make replacement parts for older cars and the less efficient newer ones. Now aftermarket vendors make replacement parts too, but less of them on the shelf with little financing availible for expanding operations means they will start costing more as they get rarer. All the sudden, Poof, it's cheaper to buy a new