Judge May Take "Fair Use" Away From Jury

NewYorkCountryLawyer writes "In what I can only describe as a shocker, the Judge in SONY BMG Music Entertainment v. Tenenbaum has, on her own, issued an order questioning whether the jury will be allowed to decide the 'fair use' issue at all, or whether the Judge herself should decide it. Judge Nancy Gertner's decision (PDF) notes that the courts have traditionally submitted the fair use defense to the jury, but questions whether that was appropriate, since the courts have referred to it as an 'equitable' — as opposed to a 'legal' — defense. This decision came from out of the blue, as neither party had raised this issue. IMHO the Judge is barking up the wrong tree. For one, all across the legal spectrum in the US, 'equitable' defenses to 'legal' claims are triable to a jury. Secondly, as the Judge herself notes, the courts have traditionally submitted the issue to the jury. It also seems a bit unfair to bring up a totally new issue like that and give the parties only 6 days to do their research and writing on the subject, at a time when they are feverishly preparing for a July 27th trial."

Comments

Hey... that's not FAIR!

[Proudrooster]

Hey... that's not FAIR, to take away FAIR USE. :)

Automatic Appeal?

[electricprof]

It almost seems like the judge is begging for an appeal to kick it upstairs and make it somebody else's problem. IANAL but isn't this like asking for an appeal?

Re:Automatic Appeal?

[Artifakt]

It does sound like the court is going to end up issuing a decision that somehow formalizes what fair use includes. That's not even something an appellate court would normally risk taking on. It's more something the Supreme Court might consider doing. If it does happen, watch for the judge to only elaborate on one point of fair use, say deciding that region shifting is as legitmate as time shifting per analogy with the Betamax case. I really can't see any trial judge giving us a big list of new examples of fair use and exemptions from fair use, and detailing all sorts of subsidiary limitations. It's ballsy as all get out to try for just one. It almost seems like the judge is begging for an appeal that will have to go all the way to the very top.

Re:Automatic Appeal?

[Repossessed]

Begging for an appeal maybe, but the appellate would probably refer it back to trial to have a jury decide.

Re:Automatic Appeal?

[Anonymous Coward]

It is, but then you open up a whole can of FUBAR over judicial powers in the meantime. This is basically a judge saying "you cannot use this defense". By extension, ANY defense that is deemed "equitable" isn't permitted either.

Just Remember

[bky1701]

Ballot, Soap, Jury, Ammo; they should be used in that order.

Re:Just Remember

[exley]

Around here I think soap should be first in that list... I mean, sheesh, people.

Re:Just Remember

[mrmeval]

Bathe first dammit! Stinking while in line to vote is just wrong.

Re:Just Remember

[DoofusOfDeath]

Ballot, Soap, Jury, Ammo; they should be used in that order.

When a few people have tried that, they tend to end up in Federal prison for a long time, and they don't exactly get crowds of like-minded supporters pulling open the prison doors.

It's an interesting idea to espouse, but lets be honest, 99.99999% of us lack the courage to be that patriotic.

Re:Just Remember

[GameMaster]

Yea, the full list should read:

Ballot, Soap, Jury, Ammo, Soap on a Rope

Re:Just Remember

[monkeySauce]

OK, boxes of ballots, bars of soap... they all become lethal projectiles at sufficient speed, but I don't understand the jury. Why not just launch jurors one at a time? It would require greater targeting precision but you would need a lot less energy, and it should make your reload time a lot shorter.

Re:Just Remember

[gmhowell]

Annually IS a regular interval.

Re:Just Remember

[daveime]

Ah, you obviously haven't considered the Bergholt Stuttley (Bloody Stupid) Johnson's Patented 12-Gang Jury Launcher, with Optional Side Mounted Judge and Stenotypist Trebuchets.

Re:Just Remember

[Hal_Porter]

http://www.theatlantic.com/doc/200812/hitchens-suburbs

Published in 1961 and set in 1955, this psychodrama of an ambitiously named development in Connecticut (the source of Yatesâ(TM)s superbly misleading title) recalls us to the period that saw the publication of David Riesman's The Lonely Crowd (1950), Sloan Wilson's novel The Man in the Gray Flannel Suit (1955), the pop sociology of men like William H. Whyte and Vance Packard, whose critiques The Organization Man (1956) and The Hidden Persuaders (1957) made American business seem impersonal and cynical, and-if this isn't too fanciful-Edward Albee's Who's Afraid of Virginia Woolf? and Malvina Reynolds's song "Little Boxes," both of which made their debut in 1962. Pete Seeger had a huge success of his own with the song, which ridiculed the harmless citizens of Daly City, California, and gave us the word ticky-tacky. No less a man than Tom Lehrer was to say that it was "the most sanctimonious song ever written,"

Oh snap!

Re:Just Remember

[multipartmixed]

Once a year is way too often to use soap. Heck, I don't even use corba once a year!

Re:Just Remember

[omnichad]

Now that's a production of Hamlet that I'd pay to see.

What is it with judges going beyond the law?

[wowbagger]

NYCL, perhaps you can enlighten us all - it seems to me of late that more judges are going beyond what I understand is the scope of a judge's job (to adjudicate the law) and into "deciding" cases based on matters OUTSIDE the scope of law.

Am I misremembering what I learned back in 6th grade about the role of the judiciary in the legal system, or are these judges indeed going beyond the scope of their position?

Re:What is it with judges going beyond the law?

[Grond]

In this case the judge is adjudicating the law. There is a legal question about whether it is the province of the judge or jury to decide the value of a claim to the equitable defense of fair use. You might ask why that would be a question in the first place. Mr. Beckerman (aka NewYorkCountryLawyer) has presented his side, but allow me to summarize the issue in less biased language.

American law is in large part derived from English common law. The common law had, for historical reasons, two parallel systems of courts, law courts and equity courts (I am ignoring the admiralty and ecclesiastical courts for the sake of brevity). Legal claims were brought before law courts, and law courts could give legal remedies. Legal claims are what we would think of as most normal kinds of claims (trespass, breach of contract, etc), and legal remedies are typically money damages.

The courts of equity, on the other hand, heard equitable claims and granted equitable remedies. They also followed the rules of equity rather than legal rules. It is convenient (though somewhat imprecise) to say that where the law is concerned with hard and fast rules, equity is concerned with fairness. Thus, equity courts heard cases where the common law courts failed to administer justice, whether because a rule was unfair in the particular case or because no cause of action existed to cover the particular case. Equitable remedies were also more flexible than straightforward money damages: equity courts tended to give relief in the form of an injunction. So, for example, where the law might compel a defendant who stole a painting to pay the owner its value, equity would compel the defendant to return the actual painting because it is a unique thing that cannot truly be replaced for any price.

So, being a British colony, America inherited this dual court system. Although the federal courts and all states but Delaware have since merged the courts of law and equity, the distinction between legal & equitable claims, legal & equitable defenses, and legal & equitable relief remains.

What has any of this got to do with fair use and the jury? Well, although the law courts often had factual issues decided by juries, the equitable courts did not have juries. Thus, there is a long-standing precedent that issues of equity are decided by the judge, not the jury, and fair use has been described by many courts as an equitable defense to the legal claim of copyright infringement. If you recall from the description of equity above, it amounts to a claim that, even if the defendant did infringe the plaintiff's copyright, it would not be fair or just to hold the defendant liable in this case.

You may note that fair use is codified in 17 USC 107, but that is essentially a codification of the preexisting equitable defense. Thus, some courts have found that the codification into law did not destroy the essential equitable character of the defense.

On the other hand, there are a lot of court cases where the fair use defense was submitted to a jury. Now, it could be that that happened because the judges in those cases had the law wrong or that neither side brought up the issue and the default is to submit fact-intensive questions like fair use to the jury. Or it could be that those judges had the law correct and for various reasons fair use is a question of fact to be submitted to the jury. That is what the judge would like the sides in this case to brief her on, so that she can decide that legal question before the trial begins.

Re:What is it with judges going beyond the law?

[Alsee]

"Fair Use" ...like breaking the law in a way that has been designated as fair, and therefore unpunishable?

No, that wouldn't be a good way to put it.

I think the most informative answer is to explain the very origin of the term. We must start with the US Constitution which has a clause permitting Congress to create copyright&patent law, but more specifically such law can only be created to the purpose of promoting progress and promoting more such creation for the benefit of society. So Congress created copyright law, and it pretty much said copying was prohibited, period. Very quickly it became clear that there was a problem, with the Supreme Court making a number of rulings. Consider a typical example of modern Fair Use, something like a newspaper reviewing a book and quoting a couple of key sentences. And just to help the example lets say the newspaper is bashing the book, saying that it is riddled with errors and just plain lousy writing. The newspaper can't effectively review and criticize the book without quoting some of the errors from the book and showing an example of the atrocious writing style from the book. It is often virtually impossible to write effective review or criticism without quoting anything, and under copyright law even the smallest quote is copying is prohibited. Copyright law was having the effect of pretty much prohibiting the writing and publications of reviews, and it was most particularly a problem that anyone writing negative review or criticism would get sued under copyright law. There is a double constitutional problem there. For one, the First Amendment guarantees the right to Free Speech. Copyright law was effectively prohibiting a broad class of speech, it was prohibiting effective review and most particularly having the effect of prohibiting negative point-of-view review and criticism. The second issue is that the REQUIRED function of copyright law is to promote the creation and publication of new creative works. Copyright law was functioning to virtually prohibit the creation of valuable new independent review and criticism. It is not so unusual for one part of the Constitution to wind up in conflict with another part of the Constitution, or even in conflict with itself. Many categories of Fair Use were established on 1st Amendment free speech grounds or other constitutional issues.

Anyway, what happened is the Supreme Court got the case and saw that copyright Law was unconstitutionally prohibiting 1st Amendment protected free speech to review and criticism. When law does something unconstitutional that law is generally struck down as unconstitutional. Well, the Supreme Court apparently didn't relish the prospect of just plain striking down the entirety of copyright law and leaving it to congress to fix the problem by figuring out some new valid law to pass. Some call it "judicial activism", but the Supreme Court just plain invented the concept of "Fair Use", and they invented the idea that copyright law never actually attempted to do what the text of the law said it did. The text of copyright law prohibited copying, period, but the court decided that copyright law never actually tried to prohibit short quote-copying. Copyright law was not struck down as invalid because copyright law never actually tried to prohibit that copying. So the way Fair Use concept works is that copyright law is assumed to willingly flees when faced with any case of Fair Use. Copyright law would have to be struck down as invalid if it ever did actually attempt to restrict Fair Use.

Fair Use is the only thing keeping copyright law from being struck down as invalid.

Some people with a extremely aggressive views on copyright, people trying to diminish or eliminate Fair Use, they are very very misguided. If they actually succeeded in their efforts then copyright itself would be null and void, struck down as unconstitutional.

-

Re:What is it with judges going beyond the law?

[NewYorkCountryLawyer]

We must start with the US Constitution which has a clause permitting Congress to create copyright&patent law, but more specifically such law can only be created to the purpose of promoting progress and promoting more such creation for the benefit of society. So Congress created copyright law, and it pretty much said copying was prohibited, period. Very quickly it became clear that there was a problem, with the Supreme Court making a number of rulings. Consider a typical example of modern Fair Use, something like a newspaper reviewing a book and quoting a couple of key sentences. And just to help the example lets say the newspaper is bashing the book, saying that it is riddled with errors and just plain lousy writing. The newspaper can't effectively review and criticize the book without quoting some of the errors from the book and showing an example of the atrocious writing style from the book. It is often virtually impossible to write effective review or criticism without quoting anything, and under copyright law even the smallest quote is copying is prohibited. Copyright law was having the effect of pretty much prohibiting the writing and publications of reviews, and it was most particularly a problem that anyone writing negative review or criticism would get sued under copyright law. There is a double constitutional problem there. For one, the First Amendment guarantees the right to Free Speech. Copyright law was effectively prohibiting a broad class of speech, it was prohibiting effective review and most particularly having the effect of prohibiting negative point-of-view review and criticism. The second issue is that the REQUIRED function of copyright law is to promote the creation and publication of new creative works. Copyright law was functioning to virtually prohibit the creation of valuable new independent review and criticism. It is not so unusual for one part of the Constitution to wind up in conflict with another part of the Constitution, or even in conflict with itself. Many categories of Fair Use were established on 1st Amendment free speech grounds or other constitutional issues.

Anyway, what happened is the Supreme Court got the case and saw that copyright Law was unconstitutionally prohibiting 1st Amendment protected free speech to review and criticism. When law does something unconstitutional that law is generally struck down as unconstitutional. Well, the Supreme Court apparently didn't relish the prospect of just plain striking down the entirety of copyright law and leaving it to congress to fix the problem by figuring out some new valid law to pass. Some call it "judicial activism", but the Supreme Court just plain invented the concept of "Fair Use", and they invented the idea that copyright law never actually attempted to do what the text of the law said it did. The text of copyright law prohibited copying, period, but the court decided that copyright law never actually tried to prohibit short quote-copying. Copyright law was not struck down as invalid because copyright law never actually tried to prohibit that copying. So the way Fair Use concept works is that copyright law is assumed to willingly flees when faced with any case of Fair Use. Copyright law would have to be struck down as invalid if it ever did actually attempt to restrict Fair Use.

Fair Use is the only thing keeping copyright law from being struck down as invalid.

Some people with a extremely aggressive views on copyright, people trying to diminish or eliminate Fair Use, they are very very misguided. If they actually succeeded in their efforts then copyright itself would be null and void, struck down as unconstitutional.

Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.

You are standing in a dimly lit room

[Kligat]

There are dull incandescent bulbs hung down by wire over a set of towering oak podiums. Behind you are endless rows of rusty metal folding chairs, all occupied by elephants and donkeys, except for a few rats toward the front. The bailiff is an Argrue, standing in the shady area against the wall. You don't know what an Argrue is, but you can guess it's like what Arkansas is to Kansas and it looks vicious.

The judge uses a battle axe in place of a gavel, which would be fine if it didn't leave so many marks on the wood when it's banged, and wears an ancient Norse viking helmet. The smaller podium has a guillotine attached to it near the front, with the microphone being placed in front of the slot where you would place your head.

You have in your inventory a rope, which is binding your hands together, and a bright orange jumpsuit of -255 AGI, which you are currently wearing. The only exit is DOWN, through a trap door.

Re:You are standing in a dimly lit room

[nacturation]

> GO NORTH

Re:You are standing in a dimly lit room

[Dragonslicer]

You are eaten by a grue.

Re:You are standing in a dimly lit room

[plover]

>look innocent
I see no innocent here.
>

Re:You are standing in a dimly lit room

[Kligat]

You struggle your way north whilst wrapping the rope around your neck, but unfortunately all it gives you is a rope burn, and perhaps more unfortunately, not the kind of burn that involves starting a fire.

The judge reads a list of charges related to plagiarizing elements of a certain text adventure game, which you no doubt attempted to shrug off as fair use at the time, while banging the battle axe gavel after each sentence is read. The argrue grabs you by the shirt collar and asks you to swear on the Bible, and so you shout a string of obscenities.

98/100 HP

Re:You are standing in a dimly lit room

[nacturation]

> PUT ON ROBE & WIZARD HAT

depends...

[gandhi_2]

what I can only describe as a shocker...

That

[Dunbal]

Makes perfect sense. After all, fair use has been taken away from everyone else.

The Law is complicated.

[Anonymous Coward]

The Law is complicated--it's not a simple system of rules, it's a question of what words have people used to describe what they think the rules ought to be for the past five hundred years or so, how have those descriptions changed the rules as people have decided what they should mean, and it's not easy to get it right 100% of the time--particularly when you realize something about the law that may be inconsistent or mean that it should be handled in a slightly different way than how people thought. The issue here isn't necessarily the judge going beyond the judge's duties--especially since if that's really what's happening an appeals court will generally say so--as it is the fact that the judge only gave the lawyers a few days to research it. The law moves at a lethargic pace; six days is like a clock cycle in ALU-time.

Re:The Law is complicated.

[Falconhell]

A beaurocrat decides your health care eh?

Doesn't that already happens with your HMO system?

Some beancounter decides your treatment.

Would you rather a public servant or an accountant
decide your treatment?

Re:The Law is complicated.

[sbeckstead]

What you fail to realize is that in that contract are clauses (I assume you have read it but I bet you just assume it covers you) that let the insurer decide what is medically necessary under the terms of the contract. That's what ours says and I'm pretty sure yours is the same.

Re:Just continuing the trend of emasculating jurie

[jmorris42]

> This is just another example of Judges emasculating juries, dis-empowering them.

Exactly. Judges these days want to rule. They don't want to be constrained by having to bother with juries, legislatures, laws, constitutions, and certainly not the executive. This case is a poster child for judicial activism.

So the 6th and 7th Amendments go into the toilet now... to join the 1st, 2nd, 9th and 10th, big parts of the 4th and 5th and the 8th. But we still have the 3rd Amendment inviolate!

Folks, when do we say ENOUGH! These idiots only get away with this foolishness because we just bitch and moan and don't make them pay a political price.

Jury Rights

[pilsner.urquell]

In the United States of America Jurors are the only citizens who who are above the law. The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

Unfortunately, these rights like many our other rights have been eroded.

http://en.wikipedia.org/wiki/Citizens_Rule_Book

http://www.geocities.com/Heartland/7006/rulebook.html

The American Form of Government

Re:Jury Rights

[Daniel Dvorkin]

This "Citizens Rule Book" you seem so enamored of is not something that any sane person would take as a guide to US law.

Re:Jury Rights

[dcollins]

The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

I actually said that to a judge in Boston when I had jury duty in a criminal case about 4 years ago. I was instantaneously booted from the jury pool. (Yay, I guess?)

Re:Jury Rights

[Grond]

A page of history is worth a volume of logic, and a little history shows that this has nothing to do with the erosion of the power of juries.

Fair use was historically an equitable defense to copyright infringement, which means that it is a defense that would be brought in a court of equity. Courts of equity, unlike courts of law, never had juries. Even after the law and equity courts were merged in England and America, equitable issues remained the sole province of the judge.

The Seventh Amendment states: "In Suits at common law...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

The point of the phrase 'at common law' is to distinguish legal cases from equitable cases. From the very beginning of this country, jurors have never had the right to make decisions regarding equitable claims, defenses, or remedies.

Furthermore, the phrase 'no fact tried by a jury' should serve as a reminder that the role of the jury in America has also never been to judge the law but rather to judge the facts. So, a jury would answer the question 'did the defendant strike the plaintiff without provocation' but not 'is it a tort for one person to strike another without provocation.' And in fact, if a jury decides to ignore the law and find a plainly liable defendant not liable, then the plaintiff is very likely to appeal on the basis that no rational jury could find as that jury did, which is the usual standard for overturning civil jury verdicts.

The only place where jury nullification actually 'works' is the criminal law, as a jury verdict of not guilty is generally unreviewable except for things like jury tampering. As a practical matter, however, jury selection usually eliminates any possibility that the jurors will all agree to ignore the law.

Re:Jury Rights

[MindStalker]

No, you can't tell the judge you believe in Nullification. Judges and most lawyers are against the very idea of nullification. You can still legally implement it though. But if a judge even gets a hint that your trying before the verdict is read, your out.

Re:Jury Rights

[dcollins]

No, you can't tell the judge you believe in Nullification. Judges and most lawyers are against the very idea of nullification. You can still legally implement it though. But if a judge even gets a hint that your trying before the verdict is read, your out.

That's nice and is never brought up in these discussions. Note that the judge in my case actually asked the jury pool (something like): "Does everyone agree that you have to follow all of the judge's instructions on legal issues?"

Assuming that's common, then I actually have to set out to lie in order to get on a jury, and frankly, I don't even want to be there that bad.

Re:Achem. Mistrial.

[Daniel Dvorkin]

Can you point out to me where in the Constitution jury nullification is mentioned?

Seriously, AFAIK, jury nullification is something we inherited from English common law, and was never really codified. It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

Re:Achem. Mistrial.

[0123456]

It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

There is precisely zero point in having a jury if they aren't judging the law as well as the defendant. If courts merely existed to ensure that every law was enforced, there would be no need for juries.

The reason our ancestors fought for the right to jury trials was to protect them against arbitrary laws by ensuring that only one person in twelve had to disagree before the government would be unable to get a conviction.

IANAL, but you are right

[Anonymous Coward]

Judges decide matters of law, juries decide matters of fact.

Something like fair use could be either, depending on the circumstances. Contract law is a good example. Suppose that there is a case about a contract: If the contract is clearly written, and its meaning is easily determined by reading it, a judge will decide; based on law. On the other hand, if the contract's meaning isn't obvious, witnesses might be called to clarify what the intent of the signing parties was. In that case, there may be a dispute about facts and a jury would decide.

Of course, the judge may make a mistake about who decides and, in that case, there would probably be an appeal.

Re:IANAL, but you are right

[The_mad_linguist]

Jury nullification, anyone?

I was under the impression that in the even of a contract being vague, the person who didn't write it gets their way. That principle, if I recall correctly, was used to declare that, legally speaking, tacos are not sandwiches.

Jury nullification

[jmorris42]

> jury nullification is something we inherited from English common law, and was never really codified

Well yes and no. It is sorta implicit. Combine "no fact tried by a jury, shall be otherwise re-examined" with jurors being immune to retribution by the courts for their verdicts (barring jury tampering, etc) and jury nullification kinda falls out as a consequence. If the jury decides you are guilty according to the law but that law is stupid they are free to return not guilty. It is then pretty much impossible to try the perp a second time (unless it is a civil rights case... then the feds can have a second try. grr.) and the jury is in no fear of consequences for their actions even when they do something really infamous like set OJ free.

This judge obviously fears exactly such a thing so is attempting to bypass the jury. The correct response is impeachment. Anything less sends a signal to other judges that this sort of thing is acceptable, even if some higher judge rules she can't do it in this particular case. Violating the right to a trial by jury is something no judge should be allowed to even contemplate.

Re:Achem. Mistrial.

[sys.stdout.write]

Reading legal advice from people on Slashdot is a bit like reading music reviews from people on a Britney Spears Fan Club website.

In any event, I don't know why everyone is making such a big deal out of this. The judge hasn't made any binding decisions, she just raised an issue. This happens all the time.

Furthermore, even if she did decide fair use herself I am not convinced this would produce a worse result in this case. Juries are unpredictable (see the $1.9 million verdict against Jammie Thomas). Having a learned judge decide an (arguably) legal position isn't the end of the world.

Re:Achem. Mistrial.

[brunes69]

It's both.

" The jury has the right to judge both the law as well as the fact in controversy. "
--John Jay, first Chief Justice of the United States[4]

http://en.wikipedia.org/wiki/Jury_nullification

Jury nullification has an important role in removing bad laws. For example, 60% of cases brought against prohibition were lost in the US, due mainly to jury nulltificatin (no one would convince anyone for it). This eventually led to the law being repealed.

Re:Just continuing the trend of emasculating jurie

[Jeremy Erwin]

But we still have the 3rd Amendment inviolate!

You wish! A case can be made that NSA wiretapping violates the third amendment.

Judge Gertner rocks.

[Anonymous Coward]

- I've had Judge Gertner save my ass. She's very smart, sees through nonsense, very willing to take on authority, government, etc. - It's not whether you can send fair use to a jury, it's whether you have to. If it's equitable with no damages, it can be handled every time by summary judgment even if there are issues of fact. - Juries are shitty at all complex civil matters; terminally shitty at intellectual property; and the U.S. marriage to civil juries is unusual and kind of stupid. If imprisonment is what's at stake, juries make sense. If it's about a TRO or civil damages for some kind of abstract infringement, juries make no sense. Other countries under common law and substantially similar copyright law would not use a jury. - Don't get all patriotic. Civil jury mistakes and artifacts are a core reason why the U.S. is polluted with so many lawyers, and so many rich lawyers. - Don't assume fair use is better before a jury. It's just more random. - It's odd for Judge Gertner to bring it up, agreed. But if it's a watershed issue both parties obviously should have been pursuing given their positions, but were afraid to touch, it's something she would do. - Slashdot is such an incredible fountain of ignorance, isn't it?

Re:Justifying piracy on Slashdot

[Anonymous Coward]

I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot," and Slashdot sent a legal takedown notice due to copyright infringement.

Re:You sure it's not Judge Judy?

[jfengel]

...because that's the only female US Judge I'm familiar with.

You might want to pick up a newspaper more than once a year. A female US judge is the #1 news story in just about all of them for the last week.

Re:Justifying piracy on Slashdot

[Quothz]

Don't mod him up just yet.

Couldn't do it if I tried, now that I've asked. I can't claim to fully agree with the poster, but I likes it when folks raise on-topic issues for debate. Notwithstanding my derailment, of course.

Good question, hard one to google, try a search for "Slashdot suing website"

Tell me about it. Although the AC under you might be on the right track...

I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot,"

I'm not sure why, but that spurs a memory: Remember Diggdot? They got C&D'ed, but by Digg, not /. Might be what the OP was thinking of. Looks like their operating as Doggdot these days.

Re:You sure it's not Judge Judy?

[Anonymous Coward]

...because that's the only female US Judge I'm familiar with.

You might want to pick up a newspaper more than once a year. A female US judge is the #1 news story in just about all of them for the last week.

I never knew Michael Jackson was a female US judge.

Re:Achem. Mistrial.

[sjames]

It's intrinsic to the jury system. They can't MAKE you vote guilty. If the judge even suggests how you should vote, it's a mistrial. You are under no obligation to explain to anyone, even the other 11 jurors, why you vote not guilty. Given that, the only way to actually prevent nullification is to abolish juries.

Re:If you dig deeper, you will find...

[Grond]

...the judge is either an ex-lawyer of SONY or has a family member working in a high position in RIAA/MPAA. It always is the case. In fact i wouldn't be surprised if he has a financial interest in a RIAA member.

First, Judge Nancy Gertner is a woman. Second, her private practice work before becoming a judge was primarily criminal defense and civil rights. You may be interested to know that she has a blog, and it is concerned with criminal law and civil rights. She has taught courses at Boston University, Harvard, and Yale, where she primarily taught classes on criminal law and civil rights. There is zero evidence that she or anyone she is closely connected with has anything to do with the RIAA or the MPAA.

Finally, district court judges in the United States do not get to pick and choose cases: most are assigned cases on a rotating basis. Even if Judge Gertner were a corrupt tool of the media companies, she might have gone her entire career without hearing a single copyright case. In any event, the salary and employment of federal judges is guaranteed for life (unless they are impeached by Congress and removed from office), so corruption of federal judges is very rare; they have too much job security and are paid too well to risk it.

All this negativity-- am I missing something?

[Will.Woodhull]

NYCL and others who know a thing or two about USA law:

My understanding at the moment is that if a Judge decides that the issue is an equitable one rather than a legal one, there is no need for a jury. And that in an equitable case, the Judge's duty is to determine what is fair compensation for the actual damages done. It doesn't seem like there can be any punitive damages awarded in an equity judgment.

Would this mean that Judge Gerstner could decide in favor of the RIAA, and award them compensation based on $0.79 per proven instance of copyright infringement, if that seemed the fair thing to do?

It would seem that if she decides this is an issue of equity, then the awards written into the DMCA would be guidelines that she might feel would only apply to commercial infringers who press a hundred thousand copies of a CD (which is apparently the kind of infringement that the USA Congress had in mind when they wrote the law). That it would not be equitable to impose those fines on a casual copyright infringer who may have cost the record companies a dozen sales (if that). So maybe this is a good thing?

I am so confused.

Re:All this negativity-- am I missing something?

[NewYorkCountryLawyer]

As to whether it would be a good thing or a bad thing for Judge Gertner, as opposed to the jury, to decide the fair use defense, I just don't know.

What I do know is that
-there are essentially 2 cases here, an injunction case and a money damages case;
-the injunction case is tried by the judge, the damages case by the jury,
-the fair use defense is a defense to both,
-the jury gets to decide it for the money damages case, the judge for the injunction side of the case.

Priorities

[westlake]

Ballot, Soap, Jury, Ammo; they should be used in that order.

"Fair Use" usually boils down to the question of whether the geek with a broadband connection is entitled to his free movie fix - or has to stand in line with the peons at Blockbuster.

I have said this before:

The juror is not your comrade-in-arms, he does not share the geek's sense of entitlement. He is a middle-aged, middle class, small-C conservative who respects the system and has come to do a job.

Let him define "fair use" and you risk being hammered into the ground like Jammie Thomas.

Loose talk about guns casts the geek as a psychopath.

 

Re:Justifying piracy on Slashdot

[BlackSabbath]

You get points for a cleverly presented argument. Here are a few thoughts of my own, slightly less entertainingly put:

Consider the music industry. Originally, musicians were recompensed for performances. Musicians were service providers. Then the ability to record music came along, and the model switched from service provision, to primarily widget distribution. In this instance, the widgets were LPs whose manufacture and supply was limited due to the difficulty of making perfect copies (each generation of copy would degrade the signal).

The current music industry organisations would love to perpetuate the "widget distribution" model. Unfortunately, the advent of digital technology means the constraint on perfect copies has been smashed. The industry is trying its hardest to close the stable door after the horse has bolted by throwing up various technical and legal hurdles to "perfect copy" distribution. Despite their best attempts they are failing. The market quite clearly is answering with its feet. If copyright violation is a crime then a massive chunk of the population are criminals.

What the music industry need to accept is that the business model is changing back from widget distribution to primarily service provision (i.e. performances). This is similar to the effect open source is having on the software industry, changing the model (in some spaces) to profit from service provision rather than box sales.

Having accepted that the industry model is changing back to service provision, free digital music distribution can be considered low cost advertising for the performers. The fact that some segments of the music industry around packaging and sales (arguably less important than the artists) will be made redundant is just tough. They will find other jobs and the title of "record industry executive" will join blacksmith, phrenologist and horse-and-buggy repairman in the history books.

The same transition happened with performance art: live performances/plays turned into movies. What will movies turn into? Will there be a resurgence of live performances? Or perhaps the astronomical costs of movies needs to just come down a bit to make them more statistically likely to be profitable?

Software is already making the transition as stated before. Open source as well as the advent of leased services from the cloud are putting a slow but inexorable end to box sales.

Books are an interesting case. I don't know how that industry will pan out. Some authors however are embracing the new opportunities. Some people - even "selfish leechers" like myself - are happy to pay for books. On that point, I should point out that in the last 12 months I have been to the concerts of three big acts and forked over almost $500 in tickets and merchandising. A large proportion of that money will go straight to the artists' pockets - far more so than if I had spent $500 on their CDs/DVDs.

Re:Justifying piracy on Slashdot

[blahplusplus]

Dear misinformed,

Due to the advent of technological advancement and the internet, formerly scarce works have become common and easily downloaded due to the non scarce nature of information, this has got westerners and excessively pro corporate, pro business peoples panties in a twist from which they have never recovered. Capitalist philosophy only makes sense when an item a person wants to consume is scarce, otherwise the "evil" socialist economics can work (and piracy is a lesson in that it works FYI). Therefore copyright has become a highly charged issue because nature of information and political economic ideology of western capitalism are at odds.

According to neoclassical economics because of the non scarce nature of digital works, their worth should be driven down towards zero and many businesses should be going bankrupt, note that this has not happened and the Movie industry has recently broken box office records. Please refer to Dark Knight released in 2008 in the following list below of top grossing box office movies of all time.

http://www.movieweb.com/movies/boxoffice/alltime.php

The nature of copyright and software licensing has always been questionable from the outset, because the public was not informed enough to mount resistance to the idea of software licensing and EULA's. So many industries got their way by way of public ignorance. Industries later gathered together lobbying more as the internet rose to power and their response to non scarcity of information was in the form of the DMCA

http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

Which added to the already dubious practice of licensing software (individuals never own their software) which most nerds have always thought dubious at best (See: Linux)

The advent of the DMCA and licensing prevents legitimate owners of software from outright owning and modifying what they bought due to crazy EULA's and liscensing that weaseled it's way into "normalcy" due to public technological ignorance, which attempted to limit software owners rights to ownership and rights to develop their own software to work with the software they already own. This has pissed off the informed who understand these issues. See: Bnetd

http://www.eff.org/cases/blizzard-v-bnetd

Corporations and the bad kinds of capitalists alike have been trying to wrest individual ownership from the people by infringing on their individual rights to own the products they buy. Software companies have always been one of the worst industries due to the idea of licensing software to individuals, rather then individuals being able to own software outright and do whatever they wish with it.

Enterprising individuals like John carmack who released open source doom, etc, and Volition Inc of Freespace 2 fame (see: http://scp.indiegames.us/ ) have been breaths of fresh air for the informed among us as they understand the deeper issues of software patents, copyright and software ownership by and large.

John carmack does not believe in software patents, and is tired of the stupid shit that such patents and overzealous and excessive copyright abuses, to see his frustrations and problems with such see here:

http://arstechnica.com/old/content/2004/07/4048.ars

The slashdot community has been getting pissed at the lack of reasoning power in hypercapitalist america, it seems in general that america has an excessive amount of brain dead people and anti-intellectualism, and the rise of super corporate indoctrinated nerd drones, this anti intellectualism and lack of intellectual depth increasingly found in certain americans or others so indoctrinated against intellectual understanding is epitomized in the following link

Re:Achem. Mistrial.

[Anonymous Coward]

You may also remember that in that era, juries trying cases involving someone who was white and someone who was not white had a strong tendency to find in favor of the party who happened to be white. On the other side of injustice by bad laws is injustice by bad juries.

Furthermore, it's an awful habit to quote statistics without providing adequate context. Do you know what percentage of cases with comparable standards of evidence, etc. to a prohibition case were lost in that era? I'll admit that "less than 60%" seems like a reasonable guess, but it's nothing more than a reasonable guess until either of us does the research to confirm or deny it.

Basically, your post is a textbook example of how to construct an argument that seems authoritative at first glance but completely overlooks valid counterpoints. Don't feel too bad. This is a learning process. Just try to stop doing this and next time you see someone make a fallacious post ignoring your sides points, you should probably try to meet them half-way and show that you can recognize their points in exchange them recognizing yours.

Summarized in plain English

[Phocas]

What the decision is saying is this:

1) historically, a type of legal question known as an "equitable" claim (or equitable defense) has been decided by the judge, not a jury [for ancient historical reasons I won't get into here on Slashdot]

2) there are some cases which refer to copyright fair use as an equitable defense but it's not clear if those cases are using the term "equitable" as that term is used in (1)

3) some cases have put the fair use defense to the jury to decide, but without considering the issue I have described in (1) and (2)

4) I'd like the parties to tell me, in writing, what they think the correct answer to this issue is, and why

5) once I get the written submissions in (4), I'll decide whether the judge or the jury should rule on the copyright fair use defense

Re:Justifying piracy on Slashdot

[BlackSabbath]

To add to my earlier post, it occurs to me that its the "widget" view that has led to the viral broadening of what is considered to constitute intellectual "property". When I observe a performance there is no "property" involved and certainly none changing hands.

Another thought that comes to mind is the million-monkeys-bashing-out-Shapeskpeare view that says, if it can be thought-up someone will eventually think of it. It seems to lend itself to the view that its the use of the creation that adds value not the creations in and of themselves regardless whether that value is inspiration from art or the utility of some service provided. Its better to enrich the commons by contribution rather than deny it by exclusion. This does not deny the possibility for the creator to earn a living from the service provided through their work.

Shakespeare's value is in the countless thousands his works have inspired. Is it possible to calculate how much poorer we would culturally be if the use of his work was strictly curtailed?

Re:Justifying piracy on Slashdot

[TheP4st]

Trent Reznor of Nine Inch Nails certainly think so as he see it as free marketing to sell exclusive/bonus items http://forum.nin.com/bb/read.php?30,767183,page=1

And Robin Pecknold of Fleet Foxes think so for an entirely different reason "As much music as musicians can hear, that will only make music richer as an artform,". http://news.bbc.co.uk/2/hi/entertainment/8097324.stm

Re:Justifying piracy on Slashdot

[L4t3r4lu5]

Right, so... Whether the terms content creators / publishers impose on your "ownership" of a product are fair or not, you still want to be able to use the product they sell? Yet you want all of this at the terms you? Who gave you the right? If you don't want to abide by a specific term or condition, you don't get to use the product. That's just not how a free market works, and you know it.

I have absolutely no issue with any of what's going on except for two things:

1. Corporate lobbying. Corporations should not be able to buy legislation. End of story.
2. Government bailouts. In a free market, a business which fails is a business which fails. There's a reason for that failure; It's a sign that the business model or product is no longer financially lucrative, and the business needs to shape up or ship out. I'm bordering on refusing to pay any tax and risking imprisonment for this blatant disregard for free market economics. If the gooberment propped up every single failing business in the western world in this time of financial crysis, the World Bank would be (metaphorically, at least) empty.

Nice rant, though. Eloquent, cites sources, and emotionally provocative. Too bad you missed the bigger picture.

Re:Just continuing the trend of emasculating jurie

[L4t3r4lu5]

Juries are populated by the populace, and the populace are sheeple. They're inconvenienced by jury duty! They hold the whole service in contempt!

I was on a jury for a GBH case, lasted 5 days. At the end of the 5 days, I realised that:

- Three of the jurors didn't understand what the judge told them or what the barristers were asking, and didn't bother to ask for clarification. They just looked at the people in the dock and made up their mind based upon whether they "looked like they did it."
- Four understood, but didn't really take it seriously. It was a holiday for them, a time away from work. Needless to say these were the people who worked as a subordinate to someone else, so they still had income.
- Two were self employed. They didn't talk about anything else apart from how much money they were losing, and constantly rushed any decision.
- Two (myself and a young lady, of like mind to myself) took it seriously. We were deciding the far-reaching future of some young people charged with a terrible crime, and we did our best to help the others understand points of law, asked pertinent questions of the judge, and pretty much lead the deliberation.

There's one more person in this jury that i've not mentioned. I've saved the best until last. A young man, early twenties. All I can say about him is that he was bored. Bored by the whole thing. He constantly shuffled in his chair, hummed to himself in court, and as we entered court before we gave our verdict he hummed the death march.

If those are the people who decide my future, should I ever end up in court, I sincerely hope it is left up to a judge.

Re:Justifying piracy on Slashdot

[Jaknet]

I agree with most of what you say...apart from the blacksmith being included with phrenologist and horse-and-buggy repairman.

Blacksmith is still a viable industry (ok not as much as it was in "olden times") but the blacksmith I used to work at has expanded and had to open a second workshop in the nearby town to keep up with business. It's not just making horseshoes these days.

Re:Justifying piracy on Slashdot

[Jaazaniah]

You are right about the use adding value. It occurs to me that licensing to internet radio stations is an alternative for RIAA execs, but in reality something like that isn't nearly as complicated as what goes into fine-tuning a final recording these days, and could be handled by indie music makers with some minor counsel. Let's not get into the pay-per-use argument for media though, if the public let that model succeed, we'd all be daily criminals. No, the way forward is for the market to adjust to the conditions it now faces, but I'll not be redundant about digital media from above.

As to Shakespeares' value, you're right about the works inspired by him, and you are right about the current scene being poorer if his material was managed with modern mindsets about media, but no matter how much the media companies would love to push it, having multi-century monopolies on anything not only cripples innovation, such as adaptions of Shakespeares' work, but would also create a slow pressure of discontent from customers and artists alike, much like the public backlash to DRM or tongue-in-cheek slang like the Copyright Term Extension Act being synonymous to "The Mickey Mouse Protection Act", only worse.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Throwing the Case?

[macs4all]

I wonder if the Judge is deliberately giving the Defendant an easily-appealable point (bad/missing jury instruction), so that if it goes the RIAA's way, the Defendant can raise that issue on appeal, and the whole verdict would almost certainly be thrown out.

Bad/missing jury instruction is a oft-won appeal issue; so methinks this is a clever strategy by the judge to "help" the Defendant, without appearing to do so.

Otherwise, the Judge should get a brain scan, so they can actually find that brain tumor.

IANAL (nor a neurosurgeon for that matter), but jus' sayin'...

Re:Justifying piracy on Slashdot

[Talderas]

This certainly would be a great rule to use, in the case where each party in an agreement offers fair terms. However, in the cases where one party imposes terms and conditions that a significant portion of the public perceives as unjust, then the public pirates/steals/recreates their benefits of the agreement. In each of those cases, the victim of the piracy/theft/recreation does not gain a thing. This is the public's revenge for creating unjust terms in the first place, and unfortunately the piracy/theft/recreation victim does suffer an actual loss in the case of theft (I like to think that if the public could just as easily create an actual copy of the desired device as steal it, they would make the copy, so this loss in the case of theft is mostly a secondary effect caused by physical constraints rather than a primary effect of obtaining the technology of the device). And the public gains technology.

And all you do is show demand. Even by pirating the product you prop up this broken business model. The only way to destroy this model is to ultimately give up the product entirely, but that isn't going to happen because people feel entitled to the product which they aren't. We're going to stay in this shit cycle until those who don't like the current business model -entirely- give up the music produced via it. As long as you continue to pirate it, you perpetuate the very thing which you hate.

Re:Justifying piracy on Slashdot

[Sapphon]

I have been to the concerts of three big acts and forked over almost $500 in tickets and merchandising. A large proportion of that money will go straight to the artists' pockets - far more so than if I had spent $500 on their CDs/DVDs.

That used to be true, but isn't any more. From personal conversations with successful bands (The Living End and Hilltop Hoods) I know that the days of bands being screwed around by record labels – the Courtney Love model – are in decline. Bands can now make plenty of money off CD/electronic music sales. Plenty of bands even use tours as "loss leaders" to promote themselves in areas where their exposure is low to guage reception and generate music sales. As example I again refer to the two aforementioned bands' tours in (continental) Europe.

Conclusion: some bands make more from touring, others from music sales. The relationship varies from band to band, from tour to tour, and even from album to album depending on what sort of contract they have. The popular generalisation that merch and concerts support bands more than CD sales isn't as true now as it was 10 years ago.

(As an aside: the rest of your post is insightful and I agree with near all of it)

Re:Justifying piracy on Slashdot

[L4t3r4lu5]

Thanks for your reply. One point sticks out to me, or at least was in my mind while I read the rest of the comment:

This is the public's revenge for creating unjust terms in the first place

That is unethical. "I don't agree with your terms, so I'm going to steal your product to spite you!" isn't the answer. Boycott, and voting with your money would be both ethical and effective, if enough would engage in it. The company has not straw-man of "piracy" or "theft" to brainwash shareholders terrified by slumping profits and bamboozle courts over infringement of imaginary property rights.

The trouble is, everyone seems to want their cake, and eat it.

TNSTAAFL.

Re:Justifying piracy on Slashdot

[geminidomino]

That is unethical. "I don't agree with your terms, so I'm going to steal your product to spite you!" isn't the answer.

That's rather subjective. "Your rules are wrong and unjust, and we're going to ignore them" has worked rather well in the past.

I don't know whether your misuse of the word "steal" is intended as the easily-recognized rhetorical overload, or if you honestly don't know the actual difference. You can't steal something that doesn't physically exist.

Boycott, and voting with your money would be both ethical and effective, if enough would engage in it.

Now you're bordering on naive. See below.

The company has not straw-man of "piracy" or "theft" to brainwash shareholders terrified by slumping profits and bamboozle courts over infringement of imaginary property rights.

It doesn't matter if there's not a single instance of downloading a single item in the company's entire library, if you think they're going to stop and go "Maybe we fucked up." to their shareholders instead of blaming faceless Pirates/Hong-Kong Bootleggers/Terrorists, you're living in fantasy-land. They're scapegoats that facilitate buck-passing.

Re:Justifying piracy on Slashdot

[AnnoyaMooseCowherd]

I can see what you are getting at, but I'm not sure your analogy is correct.

Ignoring the fact that if I steal the car, the dealer no longer has a car to sell, whereas if I copy the car, he still does, there is still the issue of power.

To have a real market, the buyer and seller have to have an equal footing, which is why attention is paid to things such as price fixing and other anti-trust issues.

In the case of the car dealer, he does not have a monopoly and so his competitors can offer the same car under different terms and you, as the customer, can choose which offering suits your requirements the best. In this way a true marketplace exists and, other than the "no stealing rule", the government need not be involved.

In the case of the entertainment industry, there is a monopoly - if you want to listen to a track by your favourite band, being offered the choice between that band and one you don't want to listen to, is no real choice at all.

In this case however, rather than looking at this situation as a monopoly one and regulating in favour of the customer, in order to balance the market position, governments (perhaps as a result of lobbying) instead legislate in favour of the music industry, thereby distorting the market further and significantly disadvantaging the consumer by reducing their legal rights (e.g. not being able to take advantage of their fair use rights as this will contravene the industry's new rights to protect their encryption, etc)

You might not agree, but it is not necessarily entirely surprising that, being put in such a disadvantaged position, the customers look to subvert the status quo, by circumventing the controls the seller tries to impose.

Re:Justifying piracy on Slashdot

[Jason Levine]

I pretend not to notice when someone points out that the GPL relies on copyright law, and if I want to get rid of copyright, my beloved open source code will no longer be protected by the GPL.

I think most people here would agree that copyright does have a valid place in society. The problem is that copyright terms have been overextended and copyright powers overemphasized. It used to be that your copyright on a work only lasted 14 years. Then you could apply for a one-time extension of 14 years. After that, your work landed in the Public Domain. Now the terms are 70 years after the author's death or, if owned by a company, 95 years after publication. Under the 14+14 rule, works created in 1981 should be hitting the Public Domain now. Instead, they'll hit in 2076 (assuming corporate ownership and no more copyright extensions - big assumptions, I know). This means that I likely won't live to see works hit the Public Domain which were created when I was 6 years old. Heck, a work created in 1974 (a year before I was born) and owned by a company is currently due to hit Public Domain in 2069 - when I'm 95 years old! It's even worse if the ownership isn't corporate. Take Michael Jackson, for example. Since he just died (and assuming he owns the copyrights to his songs), his copyright will end in the year 2079. His youngest child is currently 7 years old. When the Jackson copyrights end, his youngest child will be 77 years old!

In addition to this, copyright owners are making more and more ridiculous assertions about their copyright ownership. The RIAA, for example, has tried to claim that ripping a CD to MP3 (purely for personal use) is a copyright violation. Of course, they aren't going around suing people for ripping their CDs, but they would love to get CD ripping banned.

Copyright was supposed to give a balance between the author's right to seek a profit from his work and the public advancement of the arts. Authors would have an incentive to create works thanks to the temporary monopoly that copyright granted. In exchange, the public would get to do what they wanted with the work when that monopoly ended. In addition, since the copyright would end soon, the author had an incentive to make more works. What we have now, however, is the author being granted a monopoly that persists for generations after they pass away and little to no incentive (from copyright expiration) to create additional works. The public, meanwhile, is robbed of songs entering the Public Domain and fueling new works.

Re:But why not? The system is broken

[jmorris42]

> The judge should not be changing rules mid stream.

You got it in one. :)

Judges don't make laws or decide which ones to use. That is what We The People elect a legislature for. They make the laws constrained by the limits spelled out in a Constitution. The Constitution (State or Federal) isn't sacrosanct, but it is designed to be hard enough to change that it provides some protection against poorly thought through changes made in response to momentary passions.

So if enough folks can be convinced that trial by jury creates more problems than it solves just go in and strike those parts of the 6th and 7th Amendments. I won't be joining that movement any more than I join the perennial calls to abolish the Electoral College. I understand why those things are important, in spite of their downsides.

Re:Justifying piracy on Slashdot

[illuvata]

You mean this site? It's still up, being updated, and in general shows no sign of having received a take down notice.