Fair Use Defense Dismissed In SONY V. Tenenbaum

Several readers sent us updates from the Boston courtroom where, mere hours before the start of trial, a federal judge ruled out fair use as a defense. Wired writes that "the outcome is already shaping up to resemble the only other file sharing trial," in which the RIAA got a $1.92M judgement against Jammie Thomas-Rassert. The defendant, Joel Tenenbaum, has already essentially admitted to sharing music files, and the entire defense put together by Harvard Prof. Charles Nesson and his students turned on the question of fair use. The judge wrote that the proposed defense would be "so broad it would swallow the copyright protections that Congress has created." Jury selection is complete and opening arguments will begin tomorrow morning. Here is the Twitter feed organized by Prof. Nesson's law students.

Comments

Before the arguments start?

[guruevi]

I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning. Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

This seems like another bought off or pressured case.

Re:Before the arguments start?

[Gravedigger3]

The RIAA is objecting on the grounds that it is devastating to their case. Also known as the "Fletcher" defense.

Re:Before the arguments start?

[basementman]

All European countries? Spain is the only one, and lawmakers are trying to change that.

Re:Before the arguments start?

[netwiz]

Because it's not legal in the U.S., nor is there any precedent of case law to suggest Tenenbaum's actions were legal? In fact, all the case law to date only reinforces the concept that what Joel did was illegal, and essentially sets fire to any and all copyright law that's ever existed.

Re:Before the arguments start?

[Anonymous Coward]

All European countries? Spain is the only one, and lawmakers are trying to change that.

Dutch law allows it, although of course the local copy of the RIAA would like to change that as well.

Re:Before the arguments start?

[RedK]

Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

However, most cases are brought on the grounds that the defendant has been Distributing (uploading) said music. Does Fair use also cover this ?

Re:Before the arguments start?

[fewnorms]

And before people start posting [Citation Needed], here's a link to an article talking about Mininova in particular, but also mentions the current law in the Netherlands with regards to downloading music and movies.
Quoted from the article, for those too lazy to read it:

Under Dutch law, downloading games and software is illegal, but sharing copied films and music is not. The Dutch copyright law allows consumers to make a copy of CD's and DVD's they own, and to store those copies as files on their personal computers.

So there you have it.

Re:Before the arguments start?

[RedK]

Does this allow them to then upload said music and films to other people on the Internet ? I don't think anyone has really been charged for just downloading stuff yet, but for "Sharing" (distributing, uploading).

Re:Before the arguments start?

[Anonymous Coward]

Fair Use is an important and necessary defence against claims of copyright infringement when the copying is done for legitimate purposes of commentary, satire, and/or academic analysis. It shouldn't be cheapened and undermined like this. Self-serving consumer-distributors who try to use "Fair Use" it to justify blatant copying-in-the-form-of-free-mass-distribution deserve to have their intellecually contrived rationales thrown out of court. Juries aren't supposed to rewrite legislation, so a defense argument that asks them to legislate from the jury box and create new exceptions to copyright out of thin air, should certainly be denied a hearing in court.

Re:Before the arguments start?

[Darkness404]

I would assume that it would. Think of it in an analog analogy, if i had something that was legal in my state and gave it away for free with a sign saying basically "Note: This item is prohibited in the states of California, Virgina and Utah" and someone came in and got one of these free items. There is nothing wrong with me giving them to them if they are going to use it in the same state (use it as fair use) and there are public laws saying you can't download without fair use. However, if that person took my freely-given items then took them into another state, should I be at fault?

Re:Before the arguments start?

[Anonymous Coward]

Yes, since that was obviously your expectation (and probably intention). Next stupid question?

Re:Before the arguments start?

[Animaether]

To answer your question: no, it doesn't.

uploading is -not- allowed, downloading is. More accurately: distribution is not allowed, downloading is.

The distinction is a bit vague, as B downloading from A inherently means A is uploading to B, but quite technically a download and an upload are separate processes, hinging mostly on who initiated what.

Again this applies only to music and video (tv/movies). This doesn't apply to e.g. software* and books.

* yes, you're allowed to distribute linux distros and such. Please read these posts within the appropriate context.

Re:Before the arguments start?

[BitZtream]

Well, that would be great if the case was in Europe, but its not so your point is ... well ... pointless.

Re:Before the arguments start?

[Shakrai]

However, if that person took my freely-given items then took them into another state, should I be at fault?

I'll remember your logic the next time I want to buy a firearm that's legal in PA but illegal in my home state of NY. What's the worst that could happen?

Re:Before the arguments start?

[Darkness404]

...In case you didn't read it, something tells me the person who sold you the gun would not be at fault... My post was entirely about how it would be perfectly legal for the person selling the item to sell it to you if there was no way of knowing where you were from or how it would be used.

Re:Before the arguments start?

[ikono]

and porn sites expect and intend under-18s to enter their sites?

Re:Before the arguments start?

[jav1231]

"Also known as the "Fletcher" defense."

Okay, I read that as "felcher" and thought, "Wow! This really DOES suck ass!"

Re:Before the arguments start?

[Anonymous Coward]

That was, in fact, another stupid question. Thanks.

Re:Before the arguments start?

[Anonymous Coward]

It's the judge's job to set the parameters of the case, and he or she is perfectly in their rights to disallow a defense. In this case both sides WERE able to argue the issue quite fully, just because it happened before trial doesn't mean it wasn't fully briefed for the judge by both sides.

Re:Before the arguments start?

[Hurricane78]

You mean "lawmakers" as in "hard-core criminals, trying to change the world for their profit"?

This has nothing to do with "laws" as in "rules to prevent people in a group from hurting each other, because they decided to work together".

But I wonder why they still work together then? (Rhetorical question. I know the answer.)

Re:Before the arguments start?

[Gerzel]

Oh the judge is just saying that the standards for fair use are very vague and that to use them in a legal system you'd need an entire system to judge weather or not the use was in fact fair, a judgement system if you will. Too bad the US doesn't seem to have one of these at the movement.

Re:Before the arguments start?

[Hurricane78]

You say that, as if it were unusual for the judge to be bought.

Have you missed the entire Pirate Bay trial fiasco? (Hint: The judge and the people who could throw out the judge, were bought.)

Re:Before the arguments start?

[Gerzel]

Indeed juries should not be exposed to the random and shameful arguments of a rogue defense lawyer. Indeed the only proper thing is to have the defense team wear ball gags and point to a given selection of proper phrases and defense strategies that have been pre-screened to apply to their case.

Nothing good has ever come out of it. No cherished ideas in law, such as the idea of truth as a defense for liable and slander, have come out of a novel augment to a judge or jury.

Re:Before the arguments start?

[yachius]

The defense actually has to submit a summary of the defense strategy they want to use in the pre-trial stage. It saves a lot of time if the judge is not going to allow the defense in the end. If the defense isn't able to convince the judge in the summary they won't be able to convince the judge at trial and the jury will not be allowed to clear the defendant based on that defense even if they agree with it.

Re:Before the arguments start?

[retchdog]

As I understand it, it's the same way here in US, except that it does apply to software, books, or anything governed by copyright. The idea is that the uploader is the one doing the distributing, which makes sense to me.

Re:Before the arguments start?

[Sparr0]

Because "fair use" has nothing to do with the meanings of the words "fair" and "use". You can't look at a scenario and go "well, that seems fair". "fair use" is a specific legal term that covers a specific set of criteria that have to be applied to a situation. The judge is saving the defense wasted effort by saying ahead of time "no, there is no way you could possibly have fallen under enough of these criteria for that defense to fly".

USC 17 107

Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall includeâ"
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Re:Before the arguments start?

[jcr]

I want to know why judges are disallowing defenses at all, and what the constitutional basis is for doing so. The Jury's not there to do the judge's bidding, they're there to hear what the two sides have to say, and come to their own conclusions.

Keith Henson never got to argue that copying an L. Ron Hubbard screed to show it to law enforcement officials was fair use.

-jcr

Re:Before the arguments start?

[bertoelcon]

SOAP, BALLOT, JURY, AMMO!

It appears we are on the 4th part, rebellion anyone?

On a similar note, I thought I saw a quote from one of the leaders from the Independence of America that said something along the lines that a government should be *reset* every 200 years. If I didn't imagine it then we are long overdue.

Re:Before the arguments start?

[Anonymous Coward]

It's Boston.

If you missed the most recent thing with Professor Gates, merely entering your house is grounds for arrest. (If you accept their "we're not racist" claims. If you do, the only other alternative is that entering your house is grounds for arrest.)

Re:Before the arguments start?

[Moryath]

The RIAA's "objection" came in the form of a new pool quietly installed in the judge's backyard, more than likely...

Re:Before the arguments start?

[Shakrai]

...In case you didn't read it, something tells me the person who sold you the gun would not be at fault

If you actually believe that then I suggest you get an FFL and try it out in reality. Say hi to the friendly ATF agents for me when they slap the metal bracelets on you.

My post was entirely about how it would be perfectly legal for the person selling the item to sell it to you if there was no way of knowing where you were from or how it would be used.

And my point is that in most cases that defense doesn't fly.

Re:Before the arguments start?

[Bobb9000]

You might be thinking of Jefferson. He thought that it should be a feature of government that a new constitution be written, not every 200 years, but every nineteen or twenty, so that each new generation could best tailor the government to its needs. Letter to Samuel Kercheval, second to last paragraph.

Re:Before the arguments start?

[citizenr]

Poland is the next one. You can copy for your friends and family for non commercial use.

Re:Before the arguments start?

[RedK]

Except that here, the case is about someone distributing copyrighted material to which they had no license. In a sense, to use your analogy, the guy who sold you the gun didn't have the right to do it in the first place.

Re:Before the arguments start?

[Anonymous Coward]

Never been to a gun show have you?

Re:Before the arguments start?

[icannotthinkofaname]

If I'm reading this right, his logic is the reason why you wouldn't try to bring an illegal firearm into NY, regardless of whether or not you purchased it legally in another state.

Re:Before the arguments start?

[Ungrounded Lightning]

It's the judge's job to set the parameters of the case,

No, it's not.

It's the judges job to maintain order in the courtroom and advise the jury on points of law. It's the jury's job to judge the facts AND the law.

Re:Before the arguments start?

[Anonymous Coward]

So happens in Indiana we have a constitutional clause guaranteeing the right to a genuine jury trial, to wit: "the jury shall have the right to determine the law and the facts." A half-jury trial, where law is decided by the judge, and only facts are left to the jury, is an affront to a free man, and no Hoosier would stand for it.

Unfortunately, there's no such guarantee in the Federal constitution (the meaning of a trial "by Jury" was taken for granted in those days), and it's been steadily eroded by morons like you. The difference between the judge and the jury in this matter, and the reason arguing law before the jury is so important, is that judges are in a position to bribed much more readily than jurors. If the law provides no support for the "new exceptions to copyright", the prosecuting attorney should be able to explain that to the jury as well as the judge, right?

Re:Before the arguments start?

[Freetardo Jones]

Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

That's great. Care to explain when Boston, Massachusetts became part of Europe?

Re:Before the arguments start?

[Anonymous Coward]

judging by how our society acts, we're somewhere between ballot and jury - I'm not really sure if this is what Howdershelt meant back then. but times are times - if one were so inclined, one could think that one expects no. 4.

I'm possibly not american, but are you perhaps talking about the quote "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." (Thomas Jefferson)?
200 years / dictators - whichever comes first.

Re:Before the arguments start?

[shutdown -p now]

No, it really isn't. Downloading is also technically illegal, it's just harder to prove, and there's less damages to shoot for, which is why RIAA and the likes are going for uploaders (and not just any one, but those which shared a large number of files and/or for a long time, and where there is generally ample evidence to prove that uploading happened).

Re:Before the arguments start?

[Dun Malg]

If you actually believe that then I suggest you get an FFL and try it out in reality.

May come as a surprise to you, but you don't need to be an FFL holder to sell a gun, just like you don't need to have a business license as a car dealer to sell a car.

And my point is that in most cases that defense doesn't fly.

Incorrect. This is a state law issue. In Nevada, I can sell my 9mm pistol to my neighbor's brother, and if he turns out to live in NY city and not on my neighbors couch as I'd assumed and takes it back to NY with him, ATF can't do jack shit to me. If I lived in California, however, I'd be in violation of state law for not transferring via state-approved procedures.... but even then, the ATF still wouldn't show up at my door, it would be California DOJ dragging me off to the clink.

Re:Before the arguments start?

[shutdown -p now]

Have you missed the entire Pirate Bay trial fiasco? (Hint: The judge and the people who could throw out the judge, were bought.)

Or maybe, you know, they've actually applied Swedish law as intended. I mean, are you a lawyer in Sweden? Do you know one who did a thorough analysis of the case, with all materials at hand (and not just from hearsay)?

When everyone you disagree with is "bought", you should pause for a moment and think why it start resembling a classic conspiracy theory.

Re:Before the arguments start?

[MaskedSlacker]

Moreover, with Bittorrent, there is no distinction. Downloaders are uploaders (unless you set your client not to upload, but expect angry torrenters with pitchforks outside your window for being a leech).

Re:Before the arguments start?

[bertoelcon]

Possibly, I never heard/saw the original quote but my US history teacher mentioned it and its been ~4 years since I had that class.

Re:Before the arguments start?

[rysiek]

Poland, too. Downloading is perfectly legal under something very similar to fair use here - uploading/distributing isn't legal.

Re:Before the arguments start?

[Shakrai]

May come as a surprise to you, but you don't need to be an FFL holder to sell a gun, just like you don't need to have a business license as a car dealer to sell a car.

No, you don't need an FFL to sell a gun. Somehow I doubt though that Mr. Tenenbaum shared one song. Start selling dozens of guns that wind up in the hands of people who can't legally possess them and I think you'll find out how quickly those ATF people can do jack shit to you.

The original point being that you aren't going to be able to weasel out of something with the lame ass argument of "How am I at fault? I just made it freely available. It's not my fault they broke the law"

Re:Before the arguments start?

[Hurricane78]

Come on! You know how I mean it! "Lawmakers" as in "lobbies from Monsanto & co". Not as in "good people trying to do the right thing(tm)".

Re:Before the arguments start?

[jbernardo]

When everyone you disagree with is "bought", you should pause for a moment and think why it start resembling a classic conspiracy theory.

So, following your argument, Giovanni Falcone, Paolo Borsellino and even Eliot Ness were only conspiracy theorists?

Re:Before the arguments start?

[lazy_playboy]

Which do you prefer, angry torrenters' pitchforks or RIAA's pitchforks?

Re:Before the arguments start?

[Hurricane78]

Yes I do! I know that this is not expected here on Slashdot, so I'm OK with your reaction. But I really do.
There is a blog in German, where the whole thing was tracked, analyzed, the references were given, etc, etc. I read the stuff from the Pirate Bay site too.

It was found that the judge was a member of several groups/associations for "copyright protection" and "IP protection". Groups that openly stated the view that you know from the RIAA. And that some RIAA people were members in too. This led to a request to re-do the trial because the judge was obviously prejudiced.
They were cold hard facts. That everybody knew about. Including those people who had to decide if the trial was to be redone.
According to Swedish law, obviously a prejudice of the judge means a retrial. We're not in the dark ages after all!

But then it was stated that it was decided, that the judge was not prejudiced. An obvious and blatant lie. To protect his ass. Something that only can happen, when someone has powerful friends with a specific agenda.

But I recommend reading it all up yourself. For a trial, the whole thing is pretty funny and exciting. (Eg the story in the local pizza restaurant, etc.)
Don't take it from me. Inform yourself, and judge for yourself.

If you *then* don't come to the same conclusion, I offer you a pizza, a beer, and a place to sleep for a party weekend here in cologne. ^^

Re:Before the arguments start?

[MaskedSlacker]

Hmm...this is like asking me to choose between being lynched or executed.

Re:Before the arguments start?

[bug1]

uploading is -not- allowed, downloading is.

It would help if you were more articulate, take these questions as a hint as to what details you could have added.

Who disallowed uploading, the sever admin or is it against the law ?

The law of which country, civil or criminal ?

What if the server is private in my own home is it still illegal to upload to it ?

What if the server is in another country, can i upload to it then ?

What type of content are we talking about, movies/music/software/blogs ?

What is the license of the material you claim cant be uploaded ?

Is it illegal to upload stuff i hold exclusive copyright over ?

Article 19 of the Universal Declaration of Human Rights states, Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. http://www.un.org/en/documents/udhr/index.shtml#a19
What is the name of the person or persons who claim it is illegal for me to impart ideas through any media, and could they please report to the UN for an arse kicking.

Re:Before the arguments start?

[GreatBunzinni]

You are wrong. All countries who implemented their copyright system following France's tradition do grant the right to access a copyrighted work without authorization as long as, among other conditions, the distribution is purely non-commercial and doesn't affect commercial distribution and if the access to the work is exclusively for personal use. Although pressure from the US is trying to force legislation is trying to erase the work of art's status as a cultural manifestation and replacing it with a status similar to a perishable good or even that of a purely commercial service, that doesn't take away the current state of affairs.

And to clear your misconceptions, the special case regarding Spain's clarification of their copyright legislation (which is also based on France's copyright tradition, is that it acknowledged that transfering any file through a network does not have any relevant impact on the copyrighted work's commercialization.

Re:Before the arguments start?

[Kjella]

Well, I did follow the whole spectrial and read the court transcripts, legal analysis and conviction in Swedish... I think the one sentence summary is "These files were found through TPB, thus they're guilty of contributing to copyright infringement". They spent forever describing what bittorrent was, but really no discussion on degree of contribution. You might just as well have substituted TPB with Google, or "The murderer bought the knife here, thus the owner is an accessory to murder." I could have tolerated it if they'd discussed what the defendants knew or ought to have known and degree of blindness in operating a search engine / tracker service, but it just wasn't there. To me it smelled very much like "We found a line of reasoning to hang them by, let's just ignore the issues raised by the defense." Bought? No. Biased? Yes. I think they had decided to convict long before the trial was over, or perhaps even started. I just recognize the tunnel vision in their reasoning.

Re:Before the arguments start?

[GreatBunzinni]

It appears that you somehow are forgetting the multiple reports that the judge was clearly biased.

Re:Before the arguments start?

[shutdown -p now]

It was found that the judge was a member of several groups/associations for "copyright protection" and "IP protection". Groups that openly stated the view that you know from the RIAA. And that some RIAA people were members in too. This led to a request to re-do the trial because the judge was obviously prejudiced.

I know that part. No idea about German blogs, but it made a day on Slashdot (obviously).

They were cold hard facts.

The guy's membership in a particular organization was a fact, yes. Whether that organization is indeed RIAA-style evil, and whether this even have any relevance to particular members, was not. If I remember correctly, the judge claimed that his membership there was for the purposes of tracking copyright-related legislation.

While it does sound fishy from a guy blamed that way, I'm not exactly considering TPB guys a shiny beacon of truth, either (after all, they've already lied all the time in the past about how what they're doing is perfectly and unambiguously legal and morally right, but then their defense spun a very different story in the trial).

So we have TPB's word against a judge's word about his motives - neither to be trusted - hence the third party arbitrating this. And they've made a decision based on the facts available to them - again, not to me - about the judge and the organization.

I don't see any "cold hard facts" about this case on the Net at all - only propaganda by RIAA and their sleazy likes on one side, and by TPB and other "wanna all shiny stuff free now" kiddies on the other side, one riddled with clear marketing lies, the other an incomprehensible emotional shitstorm with little meaning but lots of name-calling. So, the only real facts are the guilty verdict and no retrial. I'll stick to those, thank you.

Re:Before the arguments start?

[shutdown -p now]

This is actually interesting. Do you know if there are any English translations (however unofficial) of this on the Net? Most of what we get on /. is from secondary sources, and very biased ones at that. Having the original transcripts at hand would settle a lot of questions once and for all.

Re:Before the arguments start?

[harlows_monkeys]

I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning

The defense did bring out the arguments of their reasoning. The judge applied the law to those arguments, and rejected them. There were no disputes of fact, and so the matter was for the judge to decide, not a jury.

This seems like another bought off or pressured case

This seems like you didn't RTFA

Re:Before the arguments start?

[shutdown -p now]

Well, here's some stuff from your first link:

The groups include the Swedish Association of Copyright, a discussion forum.

NorstrÃm also sits on the board of the Swedish Association for the Protection of Industrial Property, and the Internet Infrastructure Foundation, which oversees the dot-se country code and advises on domain name disputes.

So basically this isn't the local RIAA by the looks of it. The really suspicious part of it is presence of some people who were behind the prosecution in the same groups; so the question at hand would be whether he had any personal dealings with them.

The following is also interesting:

"It wasnâ(TM)t appropriate for him to take on this case," says Eric Bylander, senior lecturer in procedure law at Gothenburg University. "There are several circumstances which individually donâ(TM)t constitute partiality, but that put together can form a quite different picture. Itâ(TM)s also a matter of what signal this sends to the citizens. Anyone who, on reasonable grounds, can be appear biased in a case should not judge that case."

But Bylander says itâ(TM)s a toss-up as to whether the appeals court will find the conflict serious enough to throw out the verdict. "I donâ(TM)t think the trial will be declared a mistrial, but itâ(TM)s definitely a close call," he says.

So, basically, a knowledgeable lawyer who was skeptical about the whole thing, and considered the judge's behavior unethical, still didn't think that it was sufficient reason for the appeals court to declare a mistrial, and expected the outcome that happened. And now people claim that the appeals court was bribed.

Re:Before the arguments start?

[Opportunist]

If you wait for the UN to do some ass kicking, I'd say you have to bring along a bag of patience and something to eat...

Re:Before the arguments start?

[Opportunist]

Talk for your own country.

That's actually what kinda pisses me off, when people say "it's this or that way with copyright". No it's not. At least in some place on this planet, you can rest assured that it is not this way.

Please add what country you're refering to. Else I'll say "hey, uploading is legal too" and simply omit the country I'm talking about. No, I don't know a country where it is. But I'm fairly sure there is one. Despite the pressure that went into the attempt to make a unified, biased copyright, there are still very few countries that can claim the have the same regulations for copyright. Sometimes the differences are subtle, sometimes they are huge, but you can NOT apply your knowledge of the law, as correct as it may be, to any other country.

Re:Before the arguments start?

[Morlark]

Please read these posts within the appropriate context.

Every single one of those questions you asked either has an answer so obvious as to make the question meaningless, or is implicitly answered by the context of this discussion thread. If you're going to use Article 19 of the Universal Declaration of Human Rights as a defence against the unauthorised distribution of copyrighted creative works, then I think you'll find it's you who is in for a judicial arse kicking.

Re:Before the arguments start?

[Opportunist]

When pointed at each other?

Considering there are more torrenters than RIAA goons, I'd say duke it out.

Re:Before the arguments start?

[Opportunist]

You should, if you knew (or had reasonable reason to be sure) that he would break the law. There are certain cases when it's likely that someone will use your goods to break the law, and then you should be at fault. If someone comes into your weapons shop with a mask over his head, wants ammo for his still smoking .45 and is obviously in a bit of a hurry while his equally clothed buddy is waiting outside in a car with a running engine and you hear sirens coming closer, I'd say you would be at fault if you sold him one and a police officer gets hurt in the process.

Re:Before the arguments start?

[Opportunist]

THAT is the reason? The whole effing copyright is so vague and patched together that you need an entire system to judge it. That's why we have that insane amount of trials!

In civil cases, you can judge the quality of a law by the amount of trials that actually make it to the judge. The more vague and badly defined it is, the more, because people sue and don't settle out of court. If the law did define the situations you might be in well, you would either not sue or quickly settle out of court, because you knew how it would end (at least you will the moment your lawyer touches the case).

If a law is badly defined, it could swing either way and is entirely in the hands of the judge (who is, as we've seen before, not always the best person to decide over something even experts often can't really decide easily).

Why do we bother at all, why don't we simply flip a coin?

Re:Before the arguments start?

[shutdown -p now]

Read my post in context of the one I was answering to (a good idea in general, by the way). Here's what GP said:

As I understand it, it's the same way here in US

So obviously I was replying to that, and meaning the U.S. as well. I'm not an American myself, and know full well how different this can be elsewhere. But in U.S., what I said holds true.

Re:Before the arguments start?

[Opportunist]

We're not talking about a membership in a garden gnome collector's club, or something else that isn't related, where some harebrained relationship is established. This judge is a member in an organisation that lobbies for tougher IP protection, an organisation that has a keen interest in the outcome of a trial that may well be used as a precedent (yes, yes, that system doesn't work that way in Sweden... officially. Judges tend to take important trials into account, though, you don't want to contradict your peers).

I don't know about you, but I can see a bias here.

Re:Before the arguments start?

[shutdown -p now]

I can clearly see a potential bias, too. I can, however, see that it is far from certain whether it had actually influenced the decision in any way.

Re:Before the arguments start?

[Opportunist]

No, but appeals courts have other things to keep in mind too, not just the trial at hand. First, this was a high profile case, maybe the first of the many copyright trials that even made it into the normal news. Calling it a mistrial would have caused people to look at it even closer. Then there's the cost involved, a trial is by default not a cheap matter. Also, appeals courts don't really like to call mistrials, because it means that someone didn't do their homework.

Essentially, getting something overturned as a "bad court thingie", as Mr. Hutz put it so eloquently, requires nothing short of the judge being related to one of the involved parties. I guess it would have ended differently if the defense found out before the trial and they wouldn't have to toss a verdict.

Re:Before the arguments start?

[Anonymous Coward]

Why? He could be late to his ski-shooting olympic event.

Re:Before the arguments start?

[nagnamer]

Dutch law allows it, although of course the local copy of the RIAA would like to change that as well.

Copying RIAA should be made illegal.

Re:Before the arguments start?

[lbbros]

And in Italy too. Not too long ago our "Corte di Cassazione" (roughly equivalent to the Supreme Court, although Italy doesn't use common law) overturned a decision on file sharing because there was no for profit motive involved.

Re:Before the arguments start?

[Veneratio]

Well this article does mention the RIAA so your mental link with Felching is understandable. Worrying, but understandable.

Re:Before the arguments start?

[Rakarra]

As legal defences go, this was a particularly shabby one. Trying to extend "fair use" to wholesale sharing of songs with any and all strangers on the Internet is a pretty far cry from its definition in law.

What is worse than the copyright argument is his second one: "the idea of imposing law on the global ocean of free bits that has flooded into cyberspace is a gross and harmful over-extension of the power of the state and authority of the law." The Internet isn't the wild wild west. Of course laws should apply there. If the defendant shares songs, of course he's subject to the laws that cover that. Maybe I should read the actual pre-trial brief; I can only hope that the above was taken out of context.

What a terrible trial. My real fear is that some sort of precedent will be set to be used against cases that aren't completely slam-dunk against the defendant as this one is.

Re:Before the arguments start?

[Rakarra]

So happens in Indiana we have a constitutional clause guaranteeing the right to a genuine jury trial, to wit: "the jury shall have the right to determine the law and the facts." A half-jury trial, where law is decided by the judge, and only facts are left to the jury, is an affront to a free man, and no Hoosier would stand for it.

But the facts aren't in question here. The defendant is guilty, as he'll tell you if you could ask him.

The law is the issue at stake here.

Re:Before the arguments start?

[Rakarra]

You might be thinking of Jefferson. He thought that it should be a feature of government that a new constitution be written, not every 200 years, but every nineteen or twenty, so that each new generation could best tailor the government to its needs

It's very easy to claim, with the various amendments, numerous conflicting laws, and general disregard for the Constitution by all three branches of government, that we've been doing exactly that.

Maybe just.. not as structured.

Re:Before the arguments start?

[Rakarra]

So, following your argument, Giovanni Falcone, Paolo Borsellino and even Eliot Ness were only conspiracy theorists?

No, there have been conspiracies before. But this is Slashdot, where everything is a conspiracy. Just because conspiracies have occurred before doesn't mean the current complaint of conspiracy is valid.

Re:Before the arguments start?

[secondhand_Buddah]

Mod the parent up.
If I have bought a CD, and want to listen to the music digitally in MP3 format, it is fair use for me to do this, and consequently it is fair use for me to download the MP3 version of the CD. If I don't have the MP3's already, it can then be construed that it is fair use for me to download the MP3's from another source. Since the record companies do not provide me this facility in terms of my fair use, it is fair that I can download them from another source. In this framework, making MP3's available for download can be construed as fair use.

Re:Before the arguments start?

[Anonymous Coward]

I mean, are you a lawyer in Sweden? Do you know one who did a thorough analysis of the case, with all materials at hand (and not just from hearsay)?

Are YOU a lawyer in Sweden? Do YOU know one who did a thorough analysis of the case, with all materials at hand (and not just from hearsay)?

No? Then how can you be so sure they "actually applied Swedish law as intended"?

Here's the thing: maybe they did, and the GP has no real basis for his assertion. But maybe they didn't, and you have no real basis for your assertion, either.

Re:Before the arguments start?

[nagnamer]

I'm possibly not american, but are you perhaps talking about the quote "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." (Thomas Jefferson)?

Freedom that requires bloodshed is not particularly efficient. Although, I guess, it's in most cases the only option.

Re:Before the arguments start?

[pacinpm]

You can legally download music in Poland. You can't publish it on Internet but you can legally share it with your friends.

Re:Before the arguments start?

[PhilHibbs]

And the judge is absolutely right. Mass file sharing does affect the potential market value of the copyrighted work. That doesn't mean that million-$ judgements are in any way sane.

Re:Before the arguments start?

[Anonymous Coward]

"you should pause for a moment and think why it start resembling a classic conspiracy theory."

How the fuck do you guys ever postulate, and thus find, actual conspiracies?

Re:Before the arguments start?

[Anarchduke]

One more cold hard fact. Tomas NorstrÃm, the judge in question, was not merely a member of several recording industry groups, he in fact sat on the board of the Swedish Association for the Protection of Industrial Property.

So, he wasn't just a party interested in keeping involved with industry law, he was in charge of an advocacy group. I think that would put him solidly in the prejudiced and/or biased category.

Let's look at it another way. The head of the MPAA happens to be a judge, and he is the overseeing YOUR trial on illegal file sharing, or whatever. After the trial is over, and you are given a year of jail time, it is revealed that not only does he belong to the MPAA the BSA, and the RIAA, he is in fact one of the controlling parties of the MPAA.

And the group of judges who were to decide whether or not he was biased also belonged to the MPAA and the RIAA.

Does it sound like a conspiracy theory?

The pirate bay blog says this:

Oh. And it should also be noted that Anders Eka, the guy with the final decision that is not appealable, heads in an immaterial rights organisation as Peter Drowsky and Monique Wasted, the MPAA and Ifpi-lawyers. However, he does not feel that working together with the lawyers that enjoys this decision the most has an impact on his decision or that he might be biased himself...

Sure, but that is Pirate Bay, and whatever they say is suspect. Well, to quote from this site:

Monique Wasted, Peter Danowsky, Jan Rosén (assistant to Monique in the TPB-case and also the chairman for the swedish organisation for copyright), Daniel Westman (another one involved in the same sphere of Jan Rosén and Monique Wasted) - and of course, Anders Eka.

People love to shout "conspiracy theory" as a way to discredit something. And that can be true. However, there have been some conspiracy theories that turned out to be absolutely true.

http://www.cracked.com/article_15974_7-insane-conspiracies-that-actually-happened.html

Re:Before the arguments start?

[Anarchduke]

Sure. Boston became a part of Europe at the same time Europe's laws started being applied to a case in an American courtroom.

Re:Before the arguments start?

[houghi]

Point taken. Bet you wish you had not made all that fuss over a bit of tea. ;-)

Re:Before the arguments start?

[Anonymous Coward]

I have never seen a more thorough insertion of one's head up one's own ass in an attempt to will copyright law into nonexistence.

Re:Before the arguments start?

[Shadowmist]

This isn't Europe. In America "Fair Use" is a four letter word. And even in Europe I'd probably warrant that a statement such as "Copying (downloading) music for personal purposes is considered fair use" bears qualification

Re:Before the arguments start?

[Anonymous Coward]

Why do we bother at all, why don't we simply flip a coin?

because the lawyers wouldn't make any money out of it.

Re:Before the arguments start?

[Anonymous Coward]

You are wrong Downloading is not illegal.
Just as listening to music at an unliscensed performance is not illegal.
Of watching a dodgy DVD.

The final consumer has never violated copyright.

It is the uploader, or the dvd maker, or the unliscensed radio in the dentists waiting room that is violating copyright.

That is why they only ever sue bittorrent users(they upload a little) or Noobs who had music in their shared folder (offer to distribute).

If you download something using ftp or newsgroups - you have done nothing wrong whatsoever.

Re:Before the arguments start?

[Anonymous Coward]

This isn't the European court system nor should any judge use the European court system to determine a court case in the US.

If the citizens in Europe want to determine how copyright works in their country fine, but we need to figure out our own copyright the way we want here in the US. I'm not defending the judge's opinion but think we need to focus on our country and have less of a mentality of "they're doing it there so we should do it here". That is like saying oh oh they're all doing so why can't we? It's silly and leads to poor decision making.

Re:Before the arguments start?

[nmg196]

> Copying (downloading) music for personal purposes is considered fair use

There's a massive difference between copying music you already have on CD to an MP3 player (fair use) and downloading music you've never bought in the first place (theft). In this case, the defendant didn't own the music he downloaded or was sharing, so in no way could it be considered "fair use" which is probably why it was immediately dismissed.

In many countries (UK?) downloading something you have bought on CD is also theft. It's like stealing a second CD from a music shop because you've damaged the copy you originally purchased. It doesn't matter that you've already bought it, if you need a new copy you need to pay for it like you would if you lost/damaged any other product (car, phone, house etc). A "fair use" copy has to be a copy you made of the actual item you originally owned - not a new copy taken from another source.

You've put "Copying (downloading)" - implying they're always the same thing, which they're quite obviously not in this case.

Re:Before the arguments start?

[tohoward]

Nice post. I'd be interested in the Judge's reasoning, if he is using these four criteria. I know I'd look at it thusly:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

I'd think it likely, given a standard file sharing scenario, that this would fall under "non-commercial" and also "non-educational", making it difficult to meet this criteria.

(2) the nature of the copyrighted work;

Here is the interesting one in my mind. The nature of the work is essentially digital, and digital "works" exist only as ones and zeros stored in some pattern on a storage device meant to store ones and zeros. A large amount of software exists to translate those works from an essentially useless pattern (in terms of human recognition) into a picture, video, audio, or textual representation that humans would find useful. The work in this form is what was historically protected (in my limited understanding). For myself, I'm undecided (maybe unclear is a better word) why protections designed to work (for the most part) on printed text have now been extend to "works" that have no inherent value, in representations that have zero cost to "copy". I suppose at this point we'd have to refer to the social contract implied in copyright. Either way, I'd think in this area there's some wiggle room for a defense, but it seems unlikely a lower court would entertain it.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

No doubt the whole work, so this clearly lands in the non-fair-use category.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

I'm sure the "value" of the work is somewhat reduced by this type of distribution in a first order sense (i.e. if the downloader would have otherwise purchased the work in question, which is an unknown). It's unclear at best if the higher order effects overcome this or not (I think I've seen stories about studys that show both cases). In any case, I'd think there's some room here for a fair use defense.

Given all that I guess you get very little of (1), none of (3), leaving most of the potential argument on (2) and (4). It would probably benefit me to read the proposed defense to see what the law-minders were thinking.

Re:Before the arguments start?

[geminidomino]

As legal defences go, this was a particularly shabby one.

If that were the case, why not let him make it? The defense sucks, the guy gets raped by the RIAA anyway, and the judge looks less like he's a knob trying to skew the trial in favor of his corporate overlords.

Re:Before the arguments start?

[geminidomino]

Freedom that requires bloodshed is not particularly efficient. Although, I guess, it's in most cases the only option.

Human nature being what it is and all, I'm having a hard time conceiving of what the rest of those cases might be.

Re:Before the arguments start?

[geminidomino]

No, there have been conspiracies before. But this is Slashdot, where everything is a conspiracy. Just because conspiracies have occurred before doesn't mean the current complaint of conspiracy is valid.

Conversely, though, just because it's slashdot, it doesn't mean that the complain is invalid, either. Stopped clocks and all that.

Re:Before the arguments start?

[_LORAX_]

Statutory damages is a policy issue clearly within the bounds of congress to set. NYCL tends to conflate punitive and statutory damages because it better meets his theory that it's somehow unconstitutional for congress to set these statutory limits.

Re:Before the arguments start?

[b4upoo]

What bothers me is the middle man concept. An artist has a right to sell his work. But companies that feed on artists and the public have no reason to exist in my opinion. I also have a problem with the notion that broadcast material remains private property. Feed chickens corn and watch them eat it and the claim is that you own the chickens and no longer own the corn. After all you broadcast the corn for all chickens to eat.
                    The next level on the silly scale is the notion that something is more wrong because it is easier than it used to be. For example using a VCR to record music on cable music channels is no different at all than using a hard drive connected to the exact same cable to share that same tune.
                    Just how can we create an entire body of law over all this silly nonsense when the real deal is that we will end up supporting mostly the monkeys in the middle who create nothing at all?

Re:Before the arguments start?

[Anonymous Coward]

The use IS commercial, because the entire point of file sharing is to interfere with the commercial distribution of the music (by reducing the cost to zero). Commercial does not imply that the seller must be making a profit.

The nature of the 'work' is music, produced for commercial purposes. The 'work' is not digital files, that just happens to be one method by which it is distributed.

Re:Before the arguments start?

[Anonymous Coward]

All European countries? Spain is the only one, and lawmakers are trying to change that.

Downloading is also legal in Hungary. Sharing (uploading) is not.

Re:Before the arguments start?

[Anonymous Coward]

Completely wrong. If you bought a CD, and want to listen to it in MP3, YOU can convert it, as long as you don't distribute it. There is nothing that gives anyone else to right to distribute a copy.

Re:Before the arguments start?

[mcgrew]

The distinction is a bit vague, as B downloading from A inherently means A is uploading to B

That's true for bittorrent and many other P2P networks, but not all. A few years back I used Morpheus, which allowed one to choose any folder for uploading. My uploads were OSS, music from indies who want their music shared, and Star Wreck. My downloads went into a non-shared folder.

I didn't want to download RIAA music, as imo the boycott should be complete, but sometimes RIAA crap slips through when I'm looking for indie music. Do you have any idea how many songs are named "Scatterbrain?"

Re:Before the arguments start?

[uncledrax]

IANAL, but I did sleep on 600-count sheets last night:

...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

Wouldn't that mean that the defendant would have to prove, in order to use Fair Use, that he was either:
- a critic
- a commentator
- a reporter
- a teacher
- a scholar
or
- a researcher
-----
My impression is he was neither of these things. Ergo, it seems that it wouldn't fall under fair use.

If he was a blogger doing music reviews, then he might have had something better to go on?

But that still doesn't cover distribution (ie; if he was uploading).

Re:Before the arguments start?

[nagnamer]

Human nature being what it is and all, I'm having a hard time conceiving of what the rest of those cases might be.

Those cases where people just stop running from it. Like stopping the 'war on terror' through political means. (Not that it happened.)

Re:Before the arguments start?

[Anonymous Coward]

The use IS commercial, because the entire point of file sharing is to interfere with the commercial distribution of the music (by reducing the cost to zero). Commercial does not imply that the seller must be making a profit.

Do you have any citations or other references to support the above statements? They seem somewhat broad and general to me, at first glance, to be honest. I am genuinely curious.

Re:Before the arguments start?

[Anonymous Coward]

The judge in the Pirate Bay Trail was not bought, there is nothing, absolutely nothing, that indicate that he was bought. But he was biased and as many biased people he wasn't aware of his bias (hence not declaring his prior relations with the prosecuting side or his memberships of the academic clubs).

The people who could have declared a mistrail was not bought, but they were under strong pressure not to do so and could perhaps have given a the defense a better case in coming appeals. Still, they interpreted the Swedish law reasonable, they even gave the judge a slap on his hand for not declaring enough reasons of bias from his side prior to the trial. Alltough a lot of things went bad, there was simply not enough to declare a mistrial.

As Sweden has a civil law system and not a common law system, this won't effect interpretations of the law much in the future.

What is appalling is that both the police and the former Swedish Minister of Justice DID break Swedish law during the investigation of the Pirate Bay and there has been no real investigation of any of this, nor have any of them got any repercussion because of their actions. Neither has the foreign ministry of U.S.A. nor the President, got any repercussions because they broke rules agreed upon by the international community when they pressured the Swedish Minister of Justice and, perhaps, the Prime Minister. (There are good reasons to believe the Prime Minister was made to promise the outcome of the trial in exchange for U.S. making Eritrea stop the torture of, and give medical treatment and visiting rights to a Swedish journalist that has been inprisoned without a trial since 2001. Of course, as the final trial is still pending this has not happened yet.)

Re:Before the arguments start?

[Theaetetus]

Reasonable analysis, but I'd like to clear up a few points:

(2) the nature of the copyrighted work;

Here is the interesting one in my mind. The nature of the work is essentially digital, and digital "works" exist only as ones and zeros stored in some pattern on a storage device meant to store ones and zeros. A large amount of software exists to translate those works from an essentially useless pattern (in terms of human recognition) into a picture, video, audio, or textual representation that humans would find useful. The work in this form is what was historically protected (in my limited understanding). For myself, I'm undecided (maybe unclear is a better word) why protections designed to work (for the most part) on printed text have now been extend to "works" that have no inherent value, in representations that have zero cost to "copy". I suppose at this point we'd have to refer to the social contract implied in copyright. Either way, I'd think in this area there's some wiggle room for a defense, but it seems unlikely a lower court would entertain it.

While an interesting idea, you're going in the wrong direction with this one... The "nature of the copyrighted work" is about the content, not the medium it's presented in. This item weighs in favor of fair use if the work is factual in nature - scientific reports, studies, news articles, etc. - and away from fair use if the work is artistic. The policy behind it is to encourage the dissemination of factual information.

Here, the works were entirely creative in nature. He has no defense whatsoever on this point.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

I'm sure the "value" of the work is somewhat reduced by this type of distribution in a first order sense (i.e. if the downloader would have otherwise purchased the work in question, which is an unknown). It's unclear at best if the higher order effects overcome this or not (I think I've seen stories about studys that show both cases). In any case, I'd think there's some room here for a fair use defense.

My guess is that this is where they were going to go at trial - we've seen this argument many times on slashdot: he wouldn't have bought those albums if he had to pay for them, so he's not a lost sale, right? The problem isn't him, however - he's not being sued for copyright infringement for downloading, it's for uploading. He infringed the exclusive right of the copyright holder to distribute the work. So, lost sales shouldn't be measured by him, it should be measured by everyone who downloaded from him... and everyone who downloaded from people who downloaded from him... etc.

Furthermore, if you read the article, there's a quote from the judge about this point... The defense didn't present any briefs in support of the lack of value lost. Again, my guess was that they were saving these for the trial, but when the judge is ruling on pretrial motions, she works with what's in front of her: a ton of evidence from the RIAA and nothing from the defense.

Re:Before the arguments start?

[Theaetetus]

If I have bought a CD, and want to listen to the music digitally in MP3 format, it is fair use for me to do this, and consequently it is fair use for me to download the MP3 version of the CD. If I don't have the MP3's already, it can then be construed that it is fair use for me to download the MP3's from another source. Since the record companies do not provide me this facility in terms of my fair use, it is fair that I can download them from another source. In this framework, making MP3's available for download can be construed as fair use.

You didn't read the article. See that part I bolded? The judge said exactly what you said: you buy the CD, you're entitled to rip it for space-shifting. You can even download it from other people, since you paid for the CD.
Now, important question - is the defendant here accused of downloading?

No.

He's accused of uploading, and there's nothing about buying a CD that gives you a right to then make copies of it for anyone else, unless they've also bought the CD. And with no evidence whatsoever that he only uploaded to people who purchased the CD, and since he didn't actually buy these CDs anyway, he couldn't make a fair use claim.

Re:Before the arguments start?

[LabRat007]

I had no idea that a judge was allowed to "throw out defenses" prior to the start of a trial. Is this something that is restriced to civil courts or can it also happen in criminal trials?

Can someone clarify this for me?

Re:Before the arguments start?

[Sparr0]

Well, you don't have to "pass" all 4 criteria for it to be fair use. Singular exceptions have overridden the other 3 in the past, and vice versa.

Re:Before the arguments start?

[Anonymous Coward]

Those who issue legal judgments that you disagree with are not necessarily "bought off or pressured". Perhaps they just interpret the law differently. Its particularly egregious for someone who is not versed in the complications of copyright law to criticize a technical legal opinion in that area.
Desiring to download free music is not a license to smear judges.

Re:Before the arguments start?

[Nukenbar]

Who modded this up?

The Judge is always the judge/decider on the law.

The Judge will instruct the jury as to the law, and the jury then decides if the facts of the case fit into that law. The judge in this case decided that fair use in the case did not apply as a matter of law. That is the right of the judge. Now whether or not that will hold up on appeal is another story.

Re:Before the arguments start?

[secondhand_Buddah]

I understand the logic that you are presenting, and the specifics of the case as you have described them.
The point that I am attempting to make is that as the owner of the CD, the onus is upon me to assert my right to fair use. Making MP3's available (if I own the CD) to other owners to download, should also be construed as fair use, which in turn presents a case where making downloads available via P2P could be construed as fair use in certain circumstances.

Re:Before the arguments start?

[Theaetetus]

The point that I am attempting to make is that as the owner of the CD, the onus is upon me to assert my right to fair use.

Sure - it's an affirmative defense.

Making MP3's available (if I own the CD) to other owners to download, should also be construed as fair use, which in turn presents a case where making downloads available via P2P could be construed as fair use in certain circumstances.

Wait, why? Format shifting, ripping the CD you purchased into an MP3, is acceptable fair use. But if you format shift something and then upload it to people, you're distributing it. Nothing in fair use gives a right to publicly distribute a work.

Re:Before the arguments start?

[Talderas]

What do European laws on fair use have to do with interpreting the laws of the United States?

Re:Before the arguments start?

[Hatta]

Juries aren't supposed to rewrite legislation

They're not? Someone tell that to the founding fathers:

" I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution. "
--Thomas Jefferson, 1789 letter to Thomas Paine

" 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

Re:Before the arguments start?

[wastedlife]

I haven't RTFA, but the summary states that the defendant admitted to "sharing files". In my mind, that consists of uploading as well as downloading the content. While I feel that downloading should not be considered copyright infringement(someone else is doing the unauthorized distribution, not the person downloading), uploading seems to definitely infringing on copyright. Also, while I feel fair use should cover things like time and media shifting (I've read somewhere that it technically does not), I don't believe it should ever cover unauthorized distribution.

IANAL, and I am also very much against the tactics employed by the RIAA/MPAA and am for a much reduced copyright term, but by my understanding, "fair use" doesn't apply here.

Re:Before the arguments start?

[gv250]

That's great. Care to explain when Boston, Massachusetts became part of Europe?

September 17, 1630

Re:Before the arguments start?

[david_thornley]

It's almost never certain that decisions were based on bias. That's why it's important to avoid cases of potential bias, and why procedures and rules governing bias and interest specify using disinterested judges, not a promise to judge without bias.

In this case, Sweden would look a lot better if they'd chosen a judge without the bias, and some better if they'd acknowledged it.

Re:Before the arguments start?

[secondhand_Buddah]

Well, I suppose we are really talking semantics here - I mean am I uploading an MP3 to you, or are you downloading it from me. As far as I can determine, the downloader initiates the transaction.
Also in the context fair use, is this form of distribution really a legal violation, or even unethical? This is simply an altruistic act by a fellow human being that does not violating anyone's rights? Technically it is distribution, but it is by no means piracy, which is what the real issue is here.

Re:Before the arguments start?

[Theaetetus]

Well, I suppose we are really talking semantics here - I mean am I uploading an MP3 to you, or are you downloading it from me. As far as I can determine, the downloader initiates the transaction.

Also in the context fair use, is this form of distribution really a legal violation, or even unethical? This is simply an altruistic act by a fellow human being that does not violating anyone's rights? Technically it is distribution, but it is by no means piracy, which is what the real issue is here.

Well, I get where you're going with this... As far as the semantic argument, I don't think that would fly legally. "I'm not distributing, I'm merely publicly advertising that anyone who wants can come over and take a free copy" - bear in mind that Kazaa and other p2p networks do "advertise" what clients are sharing.

As for the fact that it's an altruistic act... that doesn't appear in the fair use statute, 17 USC 107. In fact, the subjective intent of the infringer isn't an issue at all - instead, it's all objective characteristics: the character of the use, the nature of the work, the amount copied, the economic damage, etc. That you're not doing it maliciously isn't a defense to copyright infringement.

Re:Before the arguments start?

[secondhand_Buddah]

Well it is distribution, but is it really a copyright infringement?
(I don't live in USA so your legislation is not directly relevant to me)

Re:Before the arguments start?

[b4dc0d3r]

So what if you own a CD, and a corresponding license to listen to the song (you don't own a physical product, you own a license). Then you download in mp3 format because it's easier and faster than ripping it yourself. Then you get a lawsuit becuase you allegedly downloaded something you don't have the right to copy.

This sounds like a fair use argument, and one that the courts should look at.

Using the record companies' license against them is the only way to go in this scenario. I have a right to listen to the CD, I have a right to make an MP3 of that CD. Given that mp3 is not a copy, it is a degraded and imperfect representation, I don't see how the law can say that downloading a crappy version of something you already own should have any punishment whatsoever. If you want to disagree with me, you'll have to wait until a court case comes along and see what comes of it.

Re:Before the arguments start?

[Theaetetus]

At a minimum you could call it contributory infringement - taking an action that you know would almost surely lead to another committing copyright infringement.

Re:Before the arguments start?

[binkzz]

And before people start posting [Citation Needed], here's a link [www.nrc.nl] to an article talking about Mininova in particular, but also mentions the current law in the Netherlands with regards to downloading music and movies. Quoted from the article, for those too lazy to read it: Under Dutch law, downloading games and software is illegal, but sharing copied films and music is not. The Dutch copyright law allows consumers to make a copy of CD's and DVD's they own, and to store those copies as files on their personal computers. So there you have it.

According to recent court judgements in the Netherlands it is not legal to download music or films, but also not a crime. Our government said it refuses to create new laws against downloading music or films until companies provide DRM free download services that are affordable and as convenient as the piracy model currently is.

Re:Before the arguments start?

[harl]

Technically it's not. The crime is question is violation of copyright. Could also be described as making an unauthorized copy. The uploader is the only one doing that. Possession of an unauthorized copy is not a crime.

This is also why BT users have been immune. Why they've gone after the trackers.

When you download from BT you never receive the whole file from one person. So is anyone really making a copy? Until the laws catch up with the tech no one wants to adress this in court.

Re:Before the arguments start?

[harl]

Really? If someone sends you x of y chunks that make up a torrent what have they provided you? Say they send you 34% of an episode of Dexter? Can you now watch 34% of that episode?

Re:Before the arguments start?

[sbeckstead]

more like, lynched or impoverished.

Re:Before the arguments start?

[retchdog]

As I understand things, you are completely wrong. I'd be extremely interested in a cite for this, in US law.

It wouldn't be hard at all to prove downloading for many cases: RIAA would just subpoena rapidshare or megaupload or whoever; scan the download-log for infringing content; and then get financial information (which includes an identity as opposed to just an IP address) from the credit card/paypal used for the account.

Re:Before the arguments start?

[shutdown -p now]

Copyright law is not defined in terms of "uploading" and "downloading". It does speak of "copying" as a right reserved for the author, however, and, quite obviously, copying takes place both when uploading and when downloading. So far as I can tell, the issue is who initiates the copying process here. If someone else uploaded a file into your publicly shared (for writing) folder, then it wasn't you, so you didn't infringe (mere possession isn't infringement). However, if you actually went elsewhere and clicked "Download", then you initiated the copy, and are infringing (as well as the other side, that willingly provided you with said copy). This applies to BitTorrent and other P2P networks just as well.

Specifically, from U.S. Copyright Office FAQ:

"Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. ... Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks."

It wouldn't be hard at all to prove downloading for many cases: RIAA would just subpoena rapidshare or megaupload or whoever; scan the download-log for infringing content; and then get financial information (which includes an identity as opposed to just an IP address) from the credit card/paypal used for the account.

It's not hard, but it's easier to go for uploaders, since all you need to prove they were distributing copyrighted material is to download it from them; for downloaders, you have to find some good evidence to get access to provider logs, or search their computers. Also, uploaders rake up more in liabilities: downloading is merely "copying", so it is known precisely how many copies are made, so damages would be limited to that; uploading, on the other hand, is "distribution", and this is where those insane $80,000 per "work" (i.e. file) fines enter into question.

That said, people have been sued for downloading. For example:

"Yamamoto, Mariano, and Martin allegedly downloaded large amounts of data from the warez server while they worked at Fox. This data included movies such as âoeWindtalkers,â âoeJimmy Neutron,â and âoeDivine Secrets of the Ya-Ya Sisterhood.â"

Re:Before the arguments start?

[retchdog]

Interesting. Thx.

Re:Before the arguments start?

[Ungrounded Lightning]

The Judge is always the judge/decider on the law.

The Judge will instruct the jury as to the law, and the jury then decides if the facts of the case fit into that law.

The supreme court disagrees with you on this. This is what judges try to sell to juries but it's not the law.

Busy now so I won't bother posting links. Go to Wikipedia and search for "jury nullification" and "fully informed jury". Then check out www.fija.org for a (partisan but clear) statement of the issue.

Re:Before the arguments start?

[Anonymous Coward]

Still incorrect.
Very large personal collections of firearms are sold off all the time without the individual needing an FFL. Unless you are in the business of selling firearms you do not need an FFL whether it is one or one hundred.

Re:Before the arguments start?

[Shagg]

The problem is, it's the monkeys in the middle who are pushing through the new laws.

Re:Before the arguments start?

[umeboshi]

I'll remember your logic the next time I want to buy a firearm that's legal in PA but illegal in my home state of NY. What's the worst that could happen?

You get shot and killed while defending your right to bear arms.

I wouldn't worry about it. Since you seem to acknowledge an unconstitutional law is a valid law in NY, this situation is unlikely to happen.

Re:Before the arguments start?

[Rakarra]

If that were the case, why not let him make it? The defense sucks, the guy gets raped by the RIAA anyway, and the judge looks less like he's a knob trying to skew the trial in favor of his corporate overlords.

Because it's a waste of time and money? Not everything is worthy of going through a big expensive show trial. As a taxpayer dismayed by the recent layoffs of half of the local court system employees, I'd rather they put their resources towards cases with something worth arguing.

At least in this specific point the judge isn't looking like a knob -- she's rejecting arguments that have no basis in law. Can't speak for the rest of this zany trial though.

Re:Before the arguments start?

[Rakarra]

Conversely, though, just because it's slashdot, it doesn't mean that the complain is invalid, either. Stopped clocks and all that.

Also true. I'd say though that the burdon of proof for wacko conspiracy theories is on the theorist.

Re:Before the arguments start?

[ganktor]

So I'm not the only one who read felcher. I feel so much better knowing that some other people read things like I do.

Re:Before the arguments start?

[Shagg]

It doesn't have to be certain either way. However, a potential bias like that is supposed to qualify as a conflict of interest, at least that's how it works in my country. Apparently not in Sweden.

Re:Before the arguments start?

[a-zA-Z0-9$_. !*'(),x]

Perhaps trying to avoid jury nullification/deadlock?

Can't let a jury of peers make decisions important to the RIAA!

tOM

Re:Before the arguments start?

[a-zA-Z0-9$_. !*'(),x]

Haven't you heard of the Chicago 7? Ball gags really worked to convict them...until the appeal.

tOM

Re:Before the arguments start?

[MaskedSlacker]

Short Answer: Yes.

Long Answer: All of your rhetorical questions are beside the point (in terms of the current law--if you're simply criticizing the law, then they are more relevant). The law doesn't distinguish between distributing a whole copy or part of a copy--because every part of the work is copyrighted, the amount you distribute has nothing to do with whether or not you've distributed copyrighted material.

Is this a good law? Not really. But I think copyright law is borked from top to bottom, and that this is a minor flaw compared to the bigger issues.

Re:Before the arguments start?

[umeboshi]

The jury deliberates in secret. The jury returns a verdict. Judgement in a case depends on the jury returning a verdict. The jury can arrive at a verdict through any means they desire, including determining whether a law is valid or not, whether the facts fit the law, whether the facts are actually facts, or even flipping coins. As long as they all agree on the verdict and they deliberate in secret there is nothing that can be done about this.

Juries are the most powerful entities in our government, more powerful than the legislative, executive, and judicial branches combined. No person can be convicted, or even tried, for a felony, unless first indicted by a grand jury. On top of that, no person can be convicted of any crime, felony or misdemeanor, unless a jury returns a guilty verdict, excepting crimes where there is no trial, due to a guilty plea.

The fact that you don't seem to understand this simple concept is evidence that you've been hoodwinked. As P.T. Barnum was known for saying, "a sucker is born every minute". I was also suckered by this years ago (so I'm not really picking on you, just trying to wake you up), but I've spent some time reading up on the topic, and I've learned just how bad things really are, and have been for years now.

Re:Before the arguments start?

[Gerzel]

Yes I believe that our society would be better off with more ball-gags. Ring-gags, latex wear, and various leather goods would also be an improvement.

Re:Before the arguments start?

[retchdog]

People: mod this down, and mod up "shutdown -p now"'s posts. I was apparently wrong, and downloading/receiving files can be considered infringement on the part of the downloader, depending on the amount of effort/awareness involved in the process. However, in practice, pure downloading is comparatively safe to p2p.

Re:Before the arguments start?

[Anonymous Coward]

Do you read Anon Cow replies, especially ones that are long and technical? I forget. Oh well, here goes:

I want to know why judges are disallowing defenses at all, and what the constitutional basis is for doing so

Generally in common law jurisdictions judges in courts of first instance have an overriding responsibility to deal with a case justly, and consequently almost invariably have the power to manage a case with a view to serving the interests of justice, even if that entails excluding issues from consideration. Judges can and will do this where an issue is raised in a defence that would lead to an unjust result by virtue of disproportionality (e.g. even if statute says clearly that a plaintiff must write his full address down on an invoice before the defendant can be considered liable for payment, the judge can ignore defects in the address such as the wrong zip code on an invoice for $5000 because to lose $5000 on the basis of such a small error would not be proportionate in the absence of strong evidence from the plaintiff of proportionate real harm; a more proportionate defence would seek a declaration by the court that no interest was running on the $5000 while the parties were in dispute over the plaintiff's address, for example, and that almost certainly would be allowed).

The Constitutional basis for this in U.S. District Courts is Section 1 of Article III of the Constitution establishing the federal judiciary and in Section 2 of the same Article III by virtue of Clause 8 of Section 8 of Article I ("Copyright Clause") being a matter of "Law and Equity arising under this Constitution".

The Supreme Court promulgates the Federal Rules of Civil Procedure pursuant to the Rules Enabling Act (28 USC 2072) after approval by Congress, and these apply in controversies over copyright.

FRCP rule 1 says:
"These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

The responsibility of a judge to deal with a case justly, speedily and inexpensively arises in this rule ("and administered").

TFA discusses Judge Gertner's reasoning. Very briefly, the judge concluded that a jury trial would be excessively expensive and would delay justice and was not justified by virtue of evidence of material facts in dispute on which a jury might sit.

This would survive FRCP rule 38(a) analysis (constitutional right and federal statute) if the defendant's demand for a jury trial were made improperly.

Rule 38(b) requires proper service and filing of the demand for a jury trial;
Rule 38(d) deems the right to a jury trail waived in the event of improper survice or filing.

Rule 39(a)(2) applies when a proper demand for a jury trial is made. The rule allows the court to find on motion or on its own that there is no federal right to a jury trial for some or all issues in the case.

All of Rule 39 is read as supporting the judge's duty to uphold the overriding principle in Rule 1.

One reason for finding that a jury trial is not a right is that the demand specifies only equitable relief, where that includes most non-monetary forms of relief such as specific performance, injunction, estoppel, and, crucially, declaratory relief.

If the defendant is seeking declaratory relief on the basis of a fair use defence, that matter is plausibly a matter of equity, and that therefore the Seventh Amendment does not preserve a right to a trial by jury because on strict reading no such right existed because:

1) Prior to the Seventh Amendment's coming into force, there was a right to a jury trial in matters of law but not of equity. The establishment of the Seventh Amendment meant that the former was preserved, but the latter was not created.

2) The Seventh Amendment says:
"In Suits at common law, whe

Re:Before the arguments start?

[bug1]

The point of mentioning the UN is that its a very delicate area, its a fine line to walk between an authors rights and people rights to commnunicate.

To state that uploading is illegal and downloading isnt does the topic a great injustice.

And ff you think its so simple please take a few seconds to answer them, thanks

Re:Before the arguments start?

[harl]

1. I didn't ask a single rhetorical question.

2. Your post is nonsensical. By your logic anyone who posts a bit set to 1 is in violation of the copyright of Gone With the Wind since that movie has a bit set to 1 and

because every part of the work is copyrighted, the amount you distribute has nothing to do with whether or not you've distributed copyrighted material.

Since you used words in your post that are used in copyright protected works is your post in violation of copyright?

Re:Before the arguments start?

[MaskedSlacker]

2. Your post is nonsensical. By your logic anyone who posts a bit set to 1 is in violation of the copyright of Gone With the Wind since that movie has a bit set to 1 and

It is not my logic. It is Congress's logic.

Since you used words in your post that are used in copyright protected works is your post in violation of copyright?

No, because words aren't creative units. But sentences are. However if I were to start sending you words or sentences or pages from a book with the express purpose of helping you acquire the whole book, then yes I would be.

As I said, this is not my logic, it's Congress's logic. The law is borked, yes. We agree on that much.

Re:Before the arguments start?

[CoderJoe]

Let me rephrase that, as you apparently misunderstood.

If B is receiving from A, then A is sending to B.

A (sending) -> B (receiving)

Re:Before the arguments start?

[harl]

No it's completely your logic. Congress defines a literary work as, " âoeLiterary worksâ are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied." Title 17 Chapter 1 Section 101.

This claim you make that a bit set to 1 violated the copy protection on everything is both nonsensical and yours alone.

Second please do not put words in my mouth. Where do I say the law is borked?

Re:Before the arguments start?

[bhiestand]

So happens in Indiana we have a constitutional clause guaranteeing the right to a genuine jury trial, to wit: "the jury shall have the right to determine the law and the facts." A half-jury trial, where law is decided by the judge, and only facts are left to the jury, is an affront to a free man, and no Hoosier would stand for it.

But the facts aren't in question here. The defendant is guilty, as he'll tell you if you could ask him.

The law is the issue at stake here.

What part of "the jury shall have the right to determine the law" didn't you understand?

The defendant won't tell you that he is guilty. He'll tell you that he shared the song. You're either a really bad troll with a low UID, or not bothering to take the time to read critically.

gosh

[wasabii]

Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.

If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.

Re:gosh

[timmarhy]

you've nailed it. this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it. judges can't over rule the law, merely work within it's boundries.

Re:gosh

[Anonymous Coward]

No idea why you got marked troll - I guess it is the -1 "I like to share files and violate copyright so you must be wrong" mod. Except for the "convicted" part (can't be convicted in a civil case), you are absolutely right. Currently law in the US clearly says you can't violate copyright. End of story. Do it and risk getting fined. You are also absolutely correct that if people don't like this, they should work to change it. 100% agreed on that.

I think most folks here are in agreement that the "Disney law" or the "Sony Bono Bill" or whatever folks want to call it was a really bad idea.

Re:gosh

[netwiz]

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

Re:gosh

[Gravedigger3]

The ability to get the law changes seems to directly correlate to the amount of money people are able to throw at the right politicians to further their agenda. The people who are passionate about the issue are usually not in a financial position to "lobby" against the current laws. Therefore people do the next logical thing, which is to ignore the laws which they are unable to change (see Marijuana).

Re:gosh

[Martin Blank]

It's closer to having a front yard give-away of paintings that you copied off of work you recently saw at an exhibit for current artists.

Re:gosh

[stinerman]

The idea that to change the laws we must become lobbyists or donate to lobbyists is extremely alarming.

Re:gosh

[PrescriptionWarning]

no its closer to having a front yard give-away of CDs that contain digital pictures of paintings that you took with your digital camera you recently saw at an exhibit for current artists.

Re:gosh

[RedK]

No, it's closer to someone uploading said music to other people on the Internet. Let's face it, there is no analogy that is going to be 100% perfect. It still is copyright infrigment to distribute the music without a proper license to do so, and this is why these people are getting sued.

Re:gosh

[jkgamer]

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

Except Tenenbaum was not making his OWN property available, it belonged to someone else. A closer analogy would be more like...

"Prosecuting people for picking their neighbor's locks and having enabled THEM to be burgled."

Re:gosh

[iamwahoo2]

copyright infringement may be against the law, but file sharing is not necessarily copyright infringement. Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.

Re:gosh

[Anonymous Coward]

Still, how is it that he can't present his case to the jury? Isn't that the whole point of the court system?

Re:gosh

[Anonymous Coward]

Analogically, it is forbidden to murder people. It is also forbidden to help others murder people. Thus if you throw out a knife, and someone picks it up and kills someone else, you should expect to be charged and thrown in prison, as you have helped him kill others.

Re:gosh

[drdrgivemethenews]

I don't get it either, and if the fair use defense wasn't just a (now discredited) holding action, I really don't get it. The polarizing thing, though, isn't so much the legality of the outcome, but the amazing mismatch between crime and punishment. But hey, we pot smokers have been dealing with that for decades.

Re:gosh

[Shakrai]

Let's face it, there is no analogy that is going to be 100% perfect

That's because nobody has tried a car analogy yet.

Re:gosh

[c0d3g33k]

People are polarized because the law is in conflict with a belief many (or most) people are taught from childhood: sharing is good. Having candy? Bring enough for everyone, or at least give your friend half. Have a good book? Loan or give it to a friend. Done with the newspaper? Leave it at the coffeeshop table so the next person can read it. Can't afford books? Go to the public library and borrow them. Know a good recipe? Share it with friends and family. Know a good joke? Tell all the people at the pub. And so on. Digital technologies and the internet have allowed the act of sharing to transcend the limitation of physical goods so the act of sharing can positively affect even more people. The reason that the "filesharing is theft" message doesn't resonate with people is that they know it isn't. Sharing is a good thing. "Don't share files because we want everyone to pay us" doesn't resonate because it is based on greed. A practice considered good since childhood is now suddenly a crime, and a practice considered bad since childhood ("Mine!") is now suddenly the paragon of virtue. People are polarized because the situation is polarizing.

Re:gosh

[Whatsisname]

"The law is the law" is whats said and used by people unable or unwilling to think for themselves.

We have juries for a reason. It is not right to convict someone solely on the basis of the existence of an unjust law.

If you think the laws as they are are just, then that's fine, but say so. Just don't say to convict simply because "it's the law".

Re:gosh

[SheeEttin]

It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law.

It's against the law to commit murder by stabbing someone to death. It's against the law to aid somebody else breaking the law. Knives, therefore, are illegal. See the flaw? File sharing is not inherently bad. Using it to infringe upon copyrights is.

Re:gosh

[Anonymous Coward]

No, a closer analogy is
'Leaving the door open. enabling your music CD's to be stolen and then illegaly played in a neighbour club, thus breaking copyright'

Re:gosh

[paeanblack]

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

It's more like leaving your workplace unlocked to be robbed with the expectation and understanding that others are doing the same.

Robbery is still a bad analogy, since it involved tangible and clearly monetizable loss. Here is a one that doesn't.

Assume you are the superintendent of an apartment building with a vacancy. It is illegal for you to squat in the vacant apartment, even though the landlords would not be "losing" anything. You get this brilliant idea to "forget" to lock the doors so the superintendent from across the street can squat there. There is a wink, wink, nudge, nudge agreement that your friend will do the same.

Yup, still illegal.

I'll all for erring on the side of the copyright infringer in the RIAA cases, given the inconsequential damages of the occasional infringement. I'm all for letting people off the hook when they claim "my kid did it", "my neighbor was on my wireless", or "I was just goofing around", and I'm okay with those excuses being abused, since the litigants are so grossly imbalanced.

Deliberately operating and maintaining a wide open server full of copyrighted material with full knowledge and expertise regarding your actions and their consequenses?

Yeah...no sympathy here

Re:gosh

[Darkness404]

Its not the fact that its against the law its the fact that A) these people are convicted for -insane- damages. Ok, how much is a song worth? About $.99 right? But to the RIAA they can sue for -hundreds- and -thousands- for a single song. So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars, perhaps ban me from the store, etc. they wouldn't sue me for many thousand dollars. Wait, but here is the thing, Wal-Mart -bought- the CD wholesale, Wal-Mart paid money for it, for digital copies they don't cost a cent to make so there are no lost profits. B) They are convicted for little to no evidence. It would be like a murder investigation throwing someone in prison because they were on the same street that the murder took place at the time of the murder. That wouldn't fly.

The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".

Re:gosh

[Anonymous Coward]

I get that it's against the law to infringe copyrighted material. I have a problem it being against the law to aid someone else breaking the law. It's not my business to police whether or not everyone else has a right to a particular file that i've made available for my own torrent interests.

Re:gosh

[Rydia]

Costs are where most people get tripped up.

First, think about the actual copying being done. Sure, using a p2p client you are downloading one copy of the song. But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

Second, damages are generous in copyright cases by design. Plaintiffs can recover treble damages. They're also eligible for special damages, which cover the victor's court costs, attorney's fees, and punitive damages. There are certain fields of law where enforcement is difficult and litigation cumbersome and expensive, so the courts are willing to heap large damages to keep rights holders from being dissuaded from bringing a strong claim (treble damages) and to try hard to dissuade people from infringing in the first place (punitive damages).

Third, you're looking at copyright wrong. Wal*Mart did buy the initial CD. But Wal*Mart didn't pay for the rights for all the people who downloaded the songs off the defendant. The defendant didn't, either. It's not a "well they wouldn't have made a sale" argument, or a "what was their actual cost" argument. This isn't an action for unjust enrichment, it's an action stating that a copyright holder's rights have been infringed. Lost profits and costs feed into the consideration, but they're not nearly central.

Re:gosh

[Anonymous Coward]

Hi. I am sure you meant to say that file sharing of copyrighted works is illegal. File sharing itself is NOT illegal (in spite of what the RIAA/MPAA want everyone to think). It IS illegal to share copyrighted material.

What is rediculousin these cases are the extremely huge and way out of line amounts that thre RIAA is asking for in damages. Damages in these cases should be limited to ACTUAL damages. If the person shared 5 MP3 files for example, the amount should be limited to $4.95, plus maybe a $50 to &100 fine.

The RIAA/MPAA are targeting the wrong people. Its not the person who uses P2P to share a few MP3 files they should worry about, its the pirates who burn a few hundred thousand bootleg copies of the CD/DVD and sell them that really are hurting the RIAA/MPAA as far as piracy goes.

They are hurting themselves far more though, by trying to hang on to their outdated business model and ideas!

Re:gosh

[Hurricane78]

My friend, what is that planet you live on? Do you got the money to change things? Can you compete with the Monsantos, RIAAs and Microsofts of this world?

Laws are useless in the context that you are applying them. Good people don't need them, and bad people ignore them anyway.
They were once rules to decide, what a group of people decided as hurting one of them. Punishment is, to not belong to the group anymore.
But nowadays, they are bullshit, like "don't walk across the road, when it's red" or "don't copy that file, because you have to buy it, even if you can't pay anyway, even if it hurts nobody to pay, and even if the original artist gets nothing from the money anyway, but all of it goes to a criminal cartel who buys politicians and terrorizes people for money."

The point is: Laws are not absolute. They are not always correct. They are not the same for everyone. Groups make compromises. But the RIAA makes none. They want to enforce their rules upon us, for their profit, hurting us all in the process, *including* the artists.

So many people blindly stand on the sidewalk, in the middle of the night, with no car in sight, waiting for it to become green. Because they are trained to not think for themselves. Trained to not understand the intention of the law, but follow its wording blindly. Even if it results in the opposite of the original intention.

And there we are at the core: The actions of the RIAA are the very opposite of what the copyright laws once meant to be. They existed, to make something more fair.
Do you think this is more fair? Do you think this is what was intended? Do. You. Actually. Think. At. All?

And this is why we ignore this. Not because we are against the law. But because we are against what they made out of it. And because we think that this is not what the law was meant to mean. So it's not the law. It is an illegal misuse of the law, to hurt us all. It is in fact something, that to prevent, laws were invented for.

Re:gosh

[Darkness404]

First, think about the actual copying being done. Sure, using a p2p client you are downloading one copy of the song. But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

Sometimes though. It can't be proven. And thats the thing, you should not be able to sue over imagined damages, they must be -proven- otherwise I could say that I'm suing SETI because when using SETI @Home it contacted an alien to the exact location of my computer and ended up abducting me for what was a second on earth time but one thousand years where they took me even though I can't prove it.

Second, damages are generous in copyright cases by design. Plaintiffs can recover treble damages. They're also eligible for special damages, which cover the victor's court costs, attorney's fees, and punitive damages. There are certain fields of law where enforcement is difficult and litigation cumbersome and expensive, so the courts are willing to heap large damages to keep rights holders from being dissuaded from bringing a strong claim (treble damages) and to try hard to dissuade people from infringing in the first place (punitive damages).

Which is a flaw in the legal system which judges both have the right and obligation to correct.

Third, you're looking at copyright wrong. Wal*Mart did buy the initial CD. But Wal*Mart didn't pay for the rights for all the people who downloaded the songs off the defendant. The defendant didn't, either. It's not a "well they wouldn't have made a sale" argument, or a "what was their actual cost" argument. This isn't an action for unjust enrichment, it's an action stating that a copyright holder's rights have been infringed. Lost profits and costs feed into the consideration, but they're not nearly central.

But without lost profits you don't really have any damages to sue for which should really be the only available option to sue for. The judicial system has rights to overturn unjust legislation, clearly the legal system is unjust and clearly it goes against the founding principles for it.

Re:gosh

[Delwin]

'Making Available' is a bunch of bullshit. The problem is that there is no log of how many times the music was downloaded from this person. If that log exists then they would prosecute based on 'X copies distributed'. Since there is no way to know what 'X' actually is they created this 'making available' fiction to cover that hole in their case.

Now if you want a real analogy here's one. I copy a CD and put it up for download. This is logically the same as legally being in possession of a work of art owned by someone else (say a museum curator and someone's having an exhibit that is not owned by the museum). I then put that piece of art on the outside of the building and walk away.

Now someone else comes along and makes a copy of that painting. This violates the copyright of the owner of the painting (which legally grants him a monopoly on that representation of that painting). The person walks away and the curator comes back and puts the painting back on the wall in the museum.

Now what crimes have been committed? Well copyright violation is one as the painting has indeed been copied against the will of it's painter. The person who copied it however is the one who committed that crime. Another you can say is 'aiding and abetting copyright violation' which has turned into our new and wonderful term 'making available' because there's actually no laws that I'm aware of that prohibit aiding a non-criminal act (copyright is civil not criminal) being actionable... but IANAL so maybe someone here knows of one.

Re:gosh

[Anonymous Coward]

"Instead, seek to CHANGE the law. Donate to lobbyists."

transla

I only wish I could contain the rage brought out by reading that.
I'll simply say that it's sad that the top 1% of society (economically) has more weight with politicians and "justice" officials than that of anyone in the bottom 99%.
Is everyone else in that bottom 99 enjoying the freedoms they allow us have? /scoff

Re:gosh

[Runaway1956]

And, that is the problem. People admit to all kinds of stupid shitzl. If someone wants to look at your computer, tell them to get a frigging warrant. If they come back with a warrant, tell them you want a lawyer. Don't even admit that the computer BELONGS TO YOU! Make them prove everything!! That is their job, after all. It's your job to tell them to get stuffed, you don't know anything, you can't recall anything, and that the same aliens who abducted you and forcibly made you watch pr0n are probably responsible for any illegal content allegedly downloaded through your IP.

Re:gosh

[PJ The Womble]

I agree that the defendant's argument that it's fair use to download copyrighted music seems not to be based in natural justice, or indeed first-order logic. As far as I can make out, that's what "copyright" means. But it's really only as arcane an argument as the judge's assertion that (and I paraphrase the article for effect) "well, if it was legal to download copyrighted music, then lots of people who currently don't do it would start doing it. And that seems like it wouldn't be a good thing for the music industry, so I rule against it". It surely shouldn't hinge on what the judge thinks is the *moral* perspective on file sharing.

I think all that has become clear to me about this case so far is why I never went on to become a lawyer!

Re:gosh

[iamwahoo2]

It may be about sharing for you, but for me, it is hard to deal with the injustice of the system. I do not believe that you should ask from other what you are unwilling to ask of yourselves, and it pains me to see somebody get financially ruined for copyright infringement, knowing that most of us have been guilty of the same thing. How can this judge make this ruling, knowing that she has probably infringed on copyright at some point in her life and got away with it, and if by some small chance, she never infringed on copyright, then surely someone close to her has. What other law today is broken so oftenyet carries such a large penalty for those whom are caught? Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.

Re:gosh

[hey!]

I agree. Reading the except of the judge's ruling, it sounds like he's only applying common sense. He's not throwing out fair use in general, only as applies to the facts of this case as admitted to by the defendant. What might raise an eyebrow is the timing of the ruling, but all in all it's fairer to the defendant than sustaining the plaintiff's objection that the fair use claim is batshit crazy.

What's scary about this is the insane damages the plaintiffs are bound to ask for. If such inflated damages are apt to be granted, then it's only fair that inflated claims of "fair use" be allowed. If the judge decides to apply the same common sense standard to the damage claims, I'll be more than satisfied.

Re:gosh

[Timothy Brownawell]

Hi. I am sure you meant to say that file sharing of copyrighted works is illegal. File sharing itself is NOT illegal (in spite of what the RIAA/MPAA want everyone to think). It IS illegal to share copyrighted material.

No, for example it's perfectly legal to share the Linux source code which is copyrighted.

It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal.

Copyright could probably be more accurately termed "censorship-right", the copyright holder has authority to censor people from communicating whatever it is they hold copyright to.

Re:gosh

[c0d3g33k]

I agree with you completely. The injustice is in part due to the unfairness and one sided nature of the situation. An act that is considered a virtue is punished more severely than outright theft. That is extremely unjust, to say the least.

Re:gosh

[Nefarious Wheel]

That's because nobody has tried a car analogy yet.

It's like giving people free rides in your car then being sued by taxi drivers.

Re:gosh

[davmoo]

If ever there was a week I wish I had mod points, this is it. Your post should be modded "+10 Sounds too intelligent to have been posted on Slashdot".

You hit the part that has never failed to both sadden and amuse me. And that part is that this community seems to rally most strongly to the support of those who are blatantly guilty of what they are being prosecuted for. Besides this case, Jammie Whatshername is another perfect example. At least in this case, from what I have read so far, the dude hasn't started it out by lying under oath.

Re:gosh

[geekboy642]

Suppose I bought one of those plastic-extruding CNC machines, and then I used it to make an exact duplicate of a 1967 Shelby GT (It might take a while, get a cup of coffee while we wait). Then suppose I give you the mustang, and you drive careening through the front of a music store in an orgy of broken glass and shattered vinyl. Once the car is pulled free of the rubble, the cops discover that a CD has fallen into the car, and arrest you for petty larceny. You get bailed out, and then drive down Rt 66 listening to The Best of Queen at full volume. All seems well until a month later, when an RIAA goon hands you a summons: You're being sued for infinity dollars because you were driving with the top down and somebody could have heard your music, clearly an unlawful distribution.

That's what this is like.

Re:gosh

[Anonymous Coward]

then you should change the copyright law to reduce the amount that can be recovered for statutory damages, from $100,000 per infringement, to say $10 (or something that reflects current market value).

But speaking as an artist, I really wish my gear and equipment would also cost proportional to the damages I can recover - i.e., Fender guitar cost $20 instead of $350; or my gf's camera cost $50 instead of $5,000.

Personally, I think .99 music is anti-competitive for those of us who are trying to make it in the world - it's secondary or tertiary income for those who can sustain .99 cent price point. It's pocket change.

Re:gosh

[darkmeridian]

Ever wonder why a parking ticket is $65 when it's only $0.25 for an extra twenty minutes of parking? Because the law is meant to dissuade you from breaking the law. If a parking ticket cost $0.25, then no one would ever pay for parking, and instead, just play their chances. If you could buy music for $1, go ahead and buy it. Don't steal it and expect to be fined only $10. If the system worked like that, NO ONE WOULD BUY MUSIC ONLINE. Like it or not, the RIAA owns the copyrights. They want to sell CDs. Sharing it online is not fair use. You want it, go buy it. You don't like it, don't buy it. Don't go steal it.

Of course, $3 million might violate the Constitution's due process clause. We'll see.

Re:gosh

[Wildclaw]

What property are you talking about? Information isn't property.

Re:gosh

[Anonymous Coward]

I'll break it down simply.

It is against natural law to restrict the flow of information.

Knowledge/information belongs to society as a whole.

Copyright exists as an incentive for individuals to share knowledge (see the constitution of the united states). They gain exclusive distribution for a limited time in exchange for releasing it to society at the end of that time.

When it never gets released to society, copyright is void. When it is used to restrict access to information, copyright is void. If it is no longer needed for individuals to create and share information with society, it no longer has a reason to exist.

One needs not change the law when the law is illegal. You only need the courts to see it as such.

Re:gosh

[Joseph_Daniel_Zukige]

No, a closer analogy is
'Leaving the door open. enabling your music CD's to be stolen

... and copied ...

and then illegaly played in a neighbour club, thus breaking copyright'

I really don't care for the RIAA, and the copyright law has to change, but if people don't want us advertising their music for them, we probably shouldn't.

Re:gosh

[shark72]

"It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal."

This is a dangerous myth. The threshold for criminal infringement is scarily low -- distribute just a few copies of the Adobe suite, or just one copy of a high-end vertical application, and you can be in criminal infringement territory.

US law limits imprisonment for criminal infringement to five years for first offenses, but still -- five years is a long time.

Re:gosh

[swillden]

But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

You think file sharers upload thousands of times as much as they download? That makes absolutely no sense.

Who are they uploading to... and which thousand people do those recipients upload to? On average (and this is very simple to prove), each sharer uploads about one copy for each copy they download. Slightly less than one copy, actually.

That's a full copy, of course, and since uploads and downloads are done in smaller segments, it's certainly possible that an individual has uploaded chunks of a given file to more people. Perhaps as many as 20 or 30 (could be more for video files, which are much larger, but given the relatively small size of music files, it doesn't make sense to break them up that much). So, even if you valued each chunk as much as the whole song, you're still only talking about damages of 20-30 dollars. Call it willful infringement and treble the damages, and you're *still* less than $100 per song.

There's just no realistic justification for damages on the level the RIAA is demanding. Of course, the problem is that the law authorizes those insane damages, because the law was written to address high-volume, commercial pirates where those damages do make sense. But they're unjust for non-commercial file sharing, and the courts should address that unfairness. And that *is* a legitimate role of the courts.

Re:gosh

[Joseph_Daniel_Zukige]

Yeah, the "lots more people would do it" reasoning is specious.

Even with the software available, setting up the servers and posting stuff takes time and money.

Come to think of it, Joel Tenenbaum was giving the artists free advertising partly at his own expense.

Re:gosh

[Anonymous Coward]

Your bad paraphrasing of RMS's tardspew doesn't do you any favors, maggot.

If you had any fucking brains in your head you'd realize that copyright infringement damages the industries that create the stuff you enjoy enough to pirate, and so you won't fucking get any more of it, but you're a freetard cocksucker so I don't expect it.

Re:gosh

[Anonymous Coward]

That is a good analogy, especially because it is remarkably close to something that actually happened - and the taxi drivers won:

http://www.techcrunch.com/2008/11/12/ill-never-let-canada-live-this-down/

Re:gosh

[Timothy Brownawell]

"It is illegal to share copyrighted material without permission from the copyright holder. But even this isn't the criminal (jailtime) kind of illegal, it's the civil (lawsuit) kind of illegal."

This is a dangerous myth. The threshold for criminal infringement is scarily low -- distribute just a few copies of the Adobe suite, or just one copy of a high-end vertical application, and you can be in criminal infringement territory.

US law limits imprisonment for criminal infringement to five years for first offenses, but still -- five years is a long time.

Hmm, interesting. It's anything over $1000 retail in half a year (or anything pre-release, or to make money). So it probably covers anyone seeding "so-and-so discography" or "<genre> greatest hits" torrents... yeah, absurd and scary.

Re:gosh

[Kjella]

Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.

No theory of fair use will let you hand out full copies of a work to any random stranger, and without uploaders there wouldn't be any file sharing. There's plenty excuses to get away with it, but little to no doubt about the law. And apart from the "limited times" that may be in doubt, it must be one of the clearest grants of power in the constitution. Based on download counts I'm fairly sure most file sharing falls under the original terms anyway. I might not agree with the law, but it's basically pitch black, if you think it's gray you'd better clean your glasses.

Re:gosh

[purpledinoz]

However, the law is unfair. The fines are far too high for the actual damages it causes. When someone loses a case, it's just another average joe, like you and me, getting raped by the RIAA and the US legal system. Of course people are going to get pissed. This could easily be any one of us.

The RIAA are also criminals. They are guilty of extortion. "We found that you may have done something wrong. Give us $5000 or face an expensive legal battle." Why is this even allowed?

Re:gosh

[hawkingradiation]

I for one hold that the entire law that premises this injustice should be removed/repealed regardless of the scale of law it would change. You never cease to remove a cancer just because it is "too big".

Re:gosh

[qazwart]

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

But, it isn't YOUR music. The music belongs to the copyright holder. If I write a book, and you buy a copy, you certainly don't have a right to print your own copies.

Nor, do I understand your argument about not prosecuting people who merely "made available". The only other thing we have is prosecuting the people who actually then download the "made available" music. This would be almost impossible to prosecute because you'd have to prove that the person who downloaded the music actually knew the music they found was illegal to download.

I am not happy with the current copyright laws, but I certainly don't want to get rid of the concept of copyright. We need to figure out a way to give the consumer the rights they want:

* Having the right to use a work on different hardware which is played in similar format. For example, if I buy a book, I still don't have a right to the movie. But, if I buy a book for my Kindle, I don't want to pay for that book again because I bought a Sony ebook reader.

* Right of first sale: If I buy a book, I get to sell the book (and my right to the copyrighted work). If I buy a record, I can sell the record (and my right to the copyrighted work). I can't sell an ebook off my Kindle, and I can't sell music I bought from the iTunes store.

* Right of assumption when there is a copyright issue. If I buy a book, and there's a copyright problem with the book, I normally am not charged with a copyright violation, and I can keep the book. The owner of the copyright goes after the initial seller, and not the buyers. The erasing of 1984 and Animal Farm off the Kindle should have never happened.

* Reasonable right of copyright expiration. This is the stickiest issue since copyrights now seem to last forever. Originally, an author wrote a book and owned the copyright. After a reasonable time after death (originally 25 years), the copyright disappeared and the work is now public property. This doesn't work with corporations since corporations never die, thus their copyright never expires. Something must be worked out to allow corporations to keep property that's valuable, but not to prevent all copyrights from ever expiring.

* A broader definition of Reasonable Use. The definition has gotten tighter and tighter as more people claim trademark and copyrights over more items. It's getting almost impossible for an independent film maker to film anything in New York because almost every shot includes some copyright or trademark someone is trying too vigorously to protect. Intent should be a prime factor. If I am filming a bunch of people, and The Simpsons happens to be in the background, I should still be able to use it. If I am filming The Simpsons on TV and occasionally make a snarky comment, that shouldn't be allowed because my obvious intent is to get around the Simpsons' copyright.

Re:gosh

[glodime]

What other law today is broken so oftenyet (sic) carries such a large penalty for those whom are caught?

Non-violent Illegal Drug Use

Re:gosh

[qazwart]

The question is not what the song is worth, but the damages. If I take a 99 cent song and a million people download it and therefore don't buy the 99 cent song themselves, the copyright holder is out a million dollars in revenue. The price of the song is irrelevant.

The best you can say is that the RIAA is overstating the damages. Just because 200,000 people download a song doesn't mean that 200,000 people would have bought the music, but didn't. The penalties the RIAA asks for isn't some random number, it's damages + penalty based upon some formula they've convinced the court is accurate..

What you need to show is that the RIAA damage assessment is wrong. That some people who downloaded the song bought the song anyway, or that some people who downloaded the song would have never bought it in the first place, or that someone downloaded the song, their friend heard it and bought it. You need to come up with your own model on calculating the damages. Maybe you can show the damages isn't $20,000, but only $500 (and $1000 in penalty).

Still sucks paying $1,500, but its better than $20,000.

Re:gosh

[Kjella]

Now what crimes have been committed? Well copyright violation is one as the painting has indeed been copied against the will of it's painter. The person who copied it however is the one who committed that crime. Another you can say is 'aiding and abetting copyright violation' which has turned into our new and wonderful term 'making available' because there's actually no laws that I'm aware of that prohibit aiding a non-criminal act (copyright is civil not criminal) being actionable... but IANAL so maybe someone here knows of one.

Under current US law both distribution and reproduction are exclusive rights of the copyright holder. In this case there is no distribution, but there is illegal reproduction. The other place your analogy breaks down is that it's you, or rather your machine that sends the copy and you announce the availability on the network. It's like the museum curator placing the work in a photocopier with a button "push here for a reproduction", which probably would be considered a violation. Yes, I know there's photocopiers in libraries too but they're intended to copy fair use excerpts, not duplicating books.

Basically, the law doesn't look too kindly on attempts at obvious trickery with the intent of twisting the law. Just because you can make personal fair use copies doesn't mean you can forget a hundred of them under a "free CDs" sign in a public area. Accidentally sharing a file on your network isn't the same as placing it in the share folder of your P2P network.

Re:gosh

[jimicus]

these people are convicted for -insane- damages.

That's a failing with the US legal system, not copyright itself. Here in the UK, in most civil cases the damages you can generally ask for are no more than would be necessary to put you back in the same position had the situation never occurred. (Having said that, we also have a "loser pays" system so the balance that should be redressed by not allowing excessive damages is promptly lost to whoever has the most money).

They are convicted for little to no evidence.

In this case, they had a little evidence and once they had it the defendant said "Yes, you're quite right, I did do it but there's nothing wrong with that". The part that needs a court to rule on is "...there's nothing wrong with that".

Disclaimer: IANAL, ICBW.

Re:gosh

[Anonymous Coward]

You are also absolutely correct that if people don't like this, they should work to change it.

Easy to say, asshole. "People" should work to change the law. "Corporations" have only to pay to change the law.

"Boner Bill" is absolutely right. How many people have done the math on this? An author writes a book when he's twenty years old. Seventy yeas later he dies. Copyright lasts for yet another seventy years. That's a hundred and forty years total -- seven fucking generations."

Square that with the Constitutional language -- "To promote the Progress of Science and useful Arts ....". How in the Name of Christ does locking up a work for seven generations do either of those two things.

"Stare decisis", my ass -- this "effective eternity" shit should be ripped out of the law and the original limits restored.

Re:gosh

[Opportunist]

*grunt* ... *curse*...

Ever tried pushing your car through that tiny cable?

*wheeze*

Re:gosh

[Opportunist]

Hate to say it, but yes, it can be. Information can be property. Most of the newer information we discover is.

Re:gosh

[Opportunist]

Hey, hey, at least we don't have mandatory price tags on our politicians yet. It's one of the last places in our bureaucratic world where you can still haggle.

Re:gosh

[Opportunist]

And I think that's due to what the GP pointed out: That we've been educated with the ideal that the good person gives. We grew up in an environment with (more or less) "western" ideals, which in turn are heavily influenced by Christian ideals. And no matter whether you believe in some higher being, the moral code set by that religion(s) had a huge influence in our moral code. Don't lie. Don't steal. Don't murder. But also, be cooperative, be helpful, give when you can and make the life of your peers better.

Not giving when you don't have any kind of disadvantage by giving is seen as an atrocity. If you saw a hungry person and you're full but still have food, would you throw the food away instead? If your neighbor's car does not start and you have a spare battery, could you not lend it to him? Our society would call you names if you didn't, calling you a selfish, miserly Scrooge. Scrooge being a perfect cue, we also have a lot of plays and stories revolving around how the greedy, miserly people only achive happyness once they overcome this and become giving, kind philanthropists.

A law that dictates that you must not give despite not losing anything goes against the moral code we were raised by. You have something that someone else wants, and you can multiply it easily and make him happy. Yet by doing so you're not the good person that you were always told you were when you gave. You'd be a bad person that breaks the law.

The problem with the law isn't so much that it is unjust. The problem is that we feel that it's wrong. It goes against anything we feel morally inclined to do. It's like being told that you must not give a thirsty person water when all you had to do is turn on the faucet.

Re:gosh

[Opportunist]

"The law is the law" is the foundation of dictatorships.

Dictatorships base their existance on three pillars of people. Those that support it because they benefit. Those that support it because they're afraid of the consequences if they don't. And finally those that support it because it's the law.

I don't blame the first group. They are maybe immoral, but they have a good reason to support it: Self interest.
I don't blame the second group. They may be cowards, but they have a good reason to support it: Self preservation.

I do blame the last group. Lazyness and ignorance is no excuse.

Re:gosh

[Opportunist]

First, think about the actual copying being done. Sure, using a p2p client you are downloading one copy of the song. But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

No, you're not. If you did, pyramid schemes would work. The theory you present is based on the same theory pyramid schemes (don't) work on: That you send the file to ten others, they again to ten more and so on. Just like in pyramid schemes the question is: This may be true for the original seeder. How could it possibly be true for someone somewhere down the chain of participants? It would require more people to download than there are on this planet.

The truth is rather that yes, thousands are downloading from you. But each and every one of them gets a tiny part of the file from you, they get the rest from someone else. If you want any sensible measurement how many people you seeded to, compare the uploaded amount to the file size and divide. I'm fairly sure, over the course of events and up/downloads you end up with a ratio of no more than 1:2. In favor of downloads, that is. There is a reason why P2P programs that enforce a DL/UL ratio (by whatever means, be it hard enforcement by forcing a certain UL rate if you want a certain DL rate or prefered treatment of heavy uploaders) never enforce a ratio that requires more up- than download.

According to the RIAA's logic, all the people that download a single chunk from you download the whole file from you. By that logic, if they could catch every single P2P participant, they would end up with more infringed uploads than there have ever been people on this planet.

Re:gosh

[Opportunist]

The charges (and fines) are based on a law that was passed long, long before the advent of P2P and aimed at pirate radio stations and stations without a RIAA contract, which indeed could reach hundreds of thousands of people, and who offered indeed the whole song to that wide audience, while at the same time earning quite a bit of money with the ad revenue generated with the infringment.

Re:gosh

[Anonymous Coward]

sharing is good.

Sharing stuff that belongs to you is good.
Sharing stuff that belongs to other people is bad.

Any questions?

Re:gosh

[Opportunist]

The law is not unfair. It was just not meant for such cases. The law this and all the other RIAA trials is based on was aimed at radio stations that did indeed service thousands if not millions of listeners but who didn't pay royalties, getting rich off ads without compensation of artists and their publishers. This also explains the insane fines, they were aimed at companies that made a sizable profit by the infringment. If the fine had been like 50 bucks a song, they would have laughed it off, considering they made thousands with the ads the songs made possible.

What we would need is either a split into "for profit" violation and "not for profit". Or, as my country did it, basing it on the income of the culprit. The laws here rarely spell out numbers, they are usually worded in the way of "a fine up to 30 days income" or similar. That way you first of all take inflation into account automatically and needn't adjust laws every few years to keep the fines from getting toothless. And it's also a lot fairer. A fine of 100 bucks for drunk driving is crippling for someone earning 600 a month, it's trivial for someone earning 6000. And being caught DUI should be crippling for everyone, it shouldn't be something you shrug off!

Re:gosh

[delt0r]

for digital copies they don't cost a cent to make.

That is rubbish. Try running a internet distribution company or website. Anything larger than a hobby web site costs a lot of money to run no matter how you slice it.

I am finishing an indie game and it is far cheaper for me to post DVDs of the game than to host downloading. DVD/CDs cost cents per unit, and as much as they complain about overheads, that's mainly internal departments charging to reduce taxable income...

Bittorrent can change this a bit. But it really doesn't work for "need cd key after download" or indie titles. Its just won't be popular enough.

Re:gosh

[barzok]

That's a failing with the US legal system, not copyright itself. Here in the UK, in most civil cases the damages you can generally ask for are no more than would be necessary to put you back in the same position had the situation never occurred.

Which is basically what the RIAA is trying to do. They're saying "we lost X amount of revenue for each song this person shared/downloaded."

It's just a ridiculous amount when you consider the number of people involved in each file-sharing "transaction."

Re:gosh

[Eivind Eklund]

Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.

If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.

Work to get rid of lobbyists.

My suggestion for how to level the playing field: Require that all lobbying be public. If somebody lobby for something, all their interactions with politicians have to be recorded and put up for download - for free. Sure, it would cost the lobbyists a bit - but not that much, and it is a reasonable extra cost of "doing business" as a lobbyists. If they have problems with the bandwidth bills, they could host a torrent.

Eivind.

Re:gosh

[Jeff DeMaagd]

People are polarized because the law is in conflict with a belief many (or most) people are taught from childhood: sharing is good. Having candy? Bring enough for everyone, or at least give your friend half.

The problem is that your example of sharing isn't the same as "sharing" what isn't yours. You bought the newspaper, somebody bought the book. Telling someone a joke isn't the same as repeating someone's entire act. Sharing a recipe isn't the same as making copies of someone else's book and just giving copies of the entire book away. Making wholesale copies of those items and "sharing" them with everybody isn't the same thing as letting someone else use your original copy.

Re:gosh

[jank1887]

last I checked, copyright involved the right to make and distribute copies of a creative work. So, making copies and distributing them around the various file sharing networks seems like a pretty clear case of copyright infringement. Whether or not there are certain cases in which the infringement is defensible is a separate issue. But, even if defensible, it would still be infringement.

Re:gosh

[geminidomino]

Costs are where most people get tripped up.

First, think about the actual copying being done. Sure, using a p2p client you are downloading one copy of the song. But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

This is brought up all the time, and it's wrong. If you're uploading "thousands of copies" over bittorrent, then you should have a share "ratio" of 1000.0. Since most users of BT don't even get a ratio to 1.0 (fuckin leechers), they're not even distributing ONE copy.

Second, damages are generous in copyright cases by design. Plaintiffs can recover treble damages. They're also eligible for special damages, which cover the victor's court costs, attorney's fees, and punitive damages. There are certain fields of law where enforcement is difficult and litigation cumbersome and expensive, so the courts are willing to heap large damages to keep rights holders from being dissuaded from bringing a strong claim (treble damages) and to try hard to dissuade people from infringing in the first place (punitive damages).

There's something wrong when the fines in a civil case would be declared "cruel and unusual" in a criminal one.

Re:gosh

[Anonymous Coward]

File sharing against the law??? Thank god Microsoft is next they've been pushing out updates to millions.....

Re:gosh

[jank1887]

hmmm... well, you've put the painting on the outside of the building. You've hung a sign up next to the painting saying, "come and make copies of this painting." Now, what you're missing from your analogy is this: you must actually be standing there helping people make the copy. Why? well, because you are providing part of the copying mechanism. In filesharing you put up a file, they request the file (or part thereof), and you dutifully send it to them. They initiate a request to your previous offer, and you respond to their request by sending them a copy of the file. Sure, it may be a passive automated process, but you set it up to behave in that automated fashion. So instead of you helping make the copies, you fashioned a robot to stand their helping make the copies while you're away. You still assisted in making the copy. maybe you put up a sign saying 'come and make copies, but I'm trusting you to only do so if you are legally permitted to do so," but make no effort to verify this permission. THEN, things finally get a bit dubious, depending on how fair use is interpreted, how license to copy/backup for noncommercial use is interpreted, etc.

Yes, I still agree that liability should require proof of the illegal event occurring, and civil liability should be tied to the number of illegal actions that can be proven to have occurred from a system under my responsibility. Note I did not say it needs to be tied to actions I committed to be liable. In a civil case, even if they couldn't prove me directly liable for copyright infringement (which should require evidence of the acting person), I suspect I could be found liable for negligence in allowing someone to use my system for illegal activity. BUT, in any case, demonstration of evidence of the illegal transfer should be required.

Re:gosh

[Anonymous Coward]

It's against the law to commit murder by stabbing someone to death. It's against the law to aid somebody else breaking the law. Stabbing people, therefore, are illegal. See the flaw? File sharing is not inherently bad. Using it to infringe upon copyrights is.

There, fixed that for you. Now you can see where you logic failed, dumbass.

Re:gosh

[Theaetetus]

'Making Available' is a bunch of bullshit. The problem is that there is no log of how many times the music was downloaded from this person. If that log exists then they would prosecute based on 'X copies distributed'. Since there is no way to know what 'X' actually is they created this 'making available' fiction to cover that hole in their case.

Imagine I make a song available and distribute 1 copy to an anonymous person. Then I stop. In your scenario, the damage is 1 copy, even though anonymous (who happens to be sitting next to me) is now uploading millions of copies. A bit naive, I think.

Now if you want a real analogy here's one. I copy a CD and put it up for download. This is logically the same as legally being in possession of a work of art owned by someone else (say a museum curator and someone's having an exhibit that is not owned by the museum). I then put that piece of art on the outside of the building and walk away.

Just to make it a bit clearer, because visual art usually requires significant effort to duplicate, how about you "put up" the art by placing it on top a photocopier with a sign saying "press copy for a free copy of this art".

Now someone else comes along and makes a copy of that painting. This violates the copyright of the owner of the painting (which legally grants him a monopoly on that representation of that painting).

Now here's the problem. In your scenario, the other person does the copying. You've stepped away from it. This, however, does not reflect reality - providing the photocopier, running Kazaa, etc. They're making a copy, using tools you provide - you are, in fact, running a "press here for a free copy" distributorship.

Another you can say is 'aiding and abetting copyright violation' which has turned into our new and wonderful term 'making available' because there's actually no laws that I'm aware of that prohibit aiding a non-criminal act (copyright is civil not criminal) being actionable... but IANAL so maybe someone here knows of one.

Joint and several liability, for one. Engaging in a common course of action or joint venture, for another. There are many ways in which aiding a tort can make one liable for the tort.

Re:gosh

[Anonymous Coward]

Do you have actual evidence of corporations 'paying' for the copyright laws (by evidence, I mean people convicted of a crime)?

You do know what corporations are, right? They are just people sharing a common interest (usually to make a profit by engaging in some business). People can also organize in other ways (such as political parties, non-profits, etc). If you think that 'the people' are not being represented fairly, why not start your own 'anti IP law' lobbying group or political party? You can raise funds and contribute to political campaigns just like any other group. Of course, good luck raising funds from a bunch of people whose common interest is they want stuff for free.

Do you have any idea how many peoples livelihoods are dependent, directly or indirectly, on IP laws? THOSE are the people (and there are millions of them) who you will need to convince to vote against their own best interests.

As for your 'promoting' comment - what evidence do you have that shortening the length of copyright would promote more creation? A quick search reveals that the two countries with, for instance, the highest number of books published are the UK and the US, both of which have the authors life plus 70 years rule. To hear you say it, there should be no new books, no new music, no new films, no new programs, no books made into films etc, because copyright is preventing that from happening. Clearly, that is not the case. To know whether a longer or shorter term of copyright promotes more creation, we need to know: does the ability to COPY (not merely be influenced by), without asking permission (which is all that copyright requires) lead to more creation than the longer payoff time of long copyrights does? Clearly, the people who believe that the longer copyright terms leads to more creation have stated their case successfully. If you have a better case to present, do it.

Re:gosh

[tsstahl]

It would be like a murder investigation throwing someone in prison because they were on the same street that the murder took place at the time of the murder. That wouldn't fly.

Well, you obviously are not black and living in Chicago, or Detroit.

Re:gosh

[tsstahl]

You can actually be cited for doing this in Chicago, even if you don't charge money. I suspect the same is true in other cities. Of course, you have to get caught first.

Re:gosh

[RedK]

What rubbish! You're just like the MPAA/RIAA. You need to stop being such a greedy bastard and just put up the ISO for download on some public tracker. Just had a .txt file to the root of the image that says that if people like the game, they can send you money. That's how it should be and you'll make tons of money that way! I read it here on slashdot.

Do I really need to put the sarcasm end tag here now ?

Re:gosh

[Acer500]

What other law today is broken so often yet carries such a large penalty for those whom are caught? Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.

I really agree with your post. We all know it is illegal, yet many of us have infringed it. I think the penalty should be revised realistically.

Re:gosh

[Anonymous Coward]

this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it.

I'm not sure if you're a bad writer or a bad thinker, but I'll give you the benefit of the doubt. While I think you're probably correct in this case (considering what the defendant says he did, and that was far more than just sharing copyrighted songs) that he's toast under the current law, your statement is completely wrong. You can admit to sharing copyrighted material and not be toast under the current law "no matter how you cut it." You might have permission (for example, Amazon and Apple share lots of copyrighted music music), you might be taking advantage of Fair Use (for example, I can share an excerpt), you might be sharing within only your house's LAN (also very likely Fair Use), etc. And then there's the whole "toast" thing: if you don't get caught, then you're not toast under current law, because no one knows who to put into the toaster.

Proofread before you post, dude.

Re:gosh

[Anonymous Coward]

In each of those cases it was the rightful owner of the thing who decided to share it. Did you also learn that it was 'good sharing' to take your neighbors pack of gum and hand it out to the class? And tell me this - who is greedier, someone who has something of value, and will share it, but expects to be paid, or someone who just collects as many things of value as he can and gives nothing in return? You seem to be one who associates any profit with 'greed'. Is collecting your paycheck 'greed'?

Re:gosh

[Anonymous Coward]

WWJD?

In the famous loaves and fishes verses, would the breadmakers and fishmongers have sued him for millions?

Re:gosh

[T Murphy]

You point out greed is looked down upon. If you view a song as belonging to an artist, then downloading a song against the copyright is greedily taking the song for yourself. Which viewpoint is "right" is a whole debate in its own right, but the moral situation here isn't black and white.

Re:gosh

[Damon Tog]

The word "sharing" is used incorrectly here.

Sharing is when you give away something that belongs to *you*. Making and distributing copies of other people's work doesn't quite fit this description.

Re:gosh

[SeeSp0tRun]

Justify $150,000 per song. In a situation where nobody stood to gain anything financially (or morally for those of you who like that stuff), money is a non issue.

Chances are, he didn't even realize he was giving his music away like that, as 100% of p2p programs set their software to upload full throttle immediately.
The question for me, is where $150,000 per song is justified as a punishment. Some kids can't even climb out from under their student loans, let along 4.5m in damages. In the case (raging on as I type this) Sony BMG says "on stand: general counsel of sony music on stand. says timberlake would be nothing without them. #jfb" (Twitter). Timberlake is estimated to be worth over 350m (google), how much could Mr. Tenenbaum really have screwed the artist out of?

Re:gosh

[Thaelon]

Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.

While I agree with this sentiment, I am hesitant to agree with this statement.

I think we should make a list of crimes and their punishments in a big long list, and then reconcile them.

I really don't think that copying four million or so bytes of digital data, such as an average MP3, or even sharing it with others freely is nearly as severe a crime as some violent crimes that currently carry lesser punishments than that of copyright infringement.

Re:gosh

[steelfood]

Since this case is probably going to be appealed to the highest level that will admit it, I hope the defense is reading /. and your post. What you've written might not be a legal defense, but it is a moral one.

Re:gosh

[jmcvetta]

Man I don't get how people are so polarized about this.

I suppose a lot of Americans have an idea -- which many lawyers would no doubt argue is incorrect -- that our courts ought to be held to a standard of justice that transcends statute.

Re:gosh

[Anonymous Coward]

It's like giving people free rides in your car then being sued by taxi drivers.

Actually, I think in Boston it probably would be illegal to provide free taxi service.

Re:gosh

[jmcvetta]

Under current US law both distribution and reproduction are exclusive rights of the copyright holder

One should not forget that 'reproduction' of a record today means something very different than it did back in the day, when most of the copyright regime was written into law. Consider the steps listed below, for making a million unauthorized copies of a record in each technological era.

Olde-times:
1. Build or rent record-stamping factory
2. Physically steal master-quality recording from owner (else your analog copies will sound like shit)
3. Hire workers and run your record factory for a few weeks

Nowadays:

for n in $(seq 1 1000000); do
        cp orig/shitty-riaa-record.tbz copies/shitty-riaa-record-copy-$n.tbz
done

Re:gosh

[jmcvetta]

File sharing is not inherently bad. Using it to infringe upon copyrights is.

Some folks would argue that government grants of intellectual monopoly (such as copyright) have the net effect of stifling culture and retarding innovation. In that way of thinking, resistance to the monopoly is a positive moral good.

Re:gosh

[Anonymous Coward]

Bittorrent can change this a bit. But it really doesn't work with my antiquated business model.

There, fixed that for you.

Re:gosh

[c0d3g33k]

I used that word quite deliberately, and I think it applies quite well to the topic we're discussing (why people are polarized, not the nuances of ownership of intangible property). "Opportunist" did an excellent job detailing the moral code that pervades our culture that is in direct conflict with the "moral code" imposed by money. This is polarizing because depending on the perspective one chooses to take, the same act can appear either good or evil. (At the risk of triggering a religious tangent, which I don't want to do, I'll turn to something I learned in my youth.) Take the "Miracle of the Loaves and Fish", for example. On the one hand, duplicating five loaves of bread and two fish to feed thousands is considered a miracle and an example of the power of generosity. On the other hand, the baker whose work was copied and distributed wasn't consulted or compensated by everyone who ate. By modern logic, the miracle would have been considered a crime because it took "other peoples work" and made and distributed copies to parasites that took "the work of others" without paying for it. So there is the essential conflict: In the realm of non-tangible goods almost everyone with a computer has the ability to perform an act of generosity on a scale that makes the miracle above pale in comparison, yet doing so is considered a crime because payment isn't extracted from everyone for the benefit of the original source of the non-tangible good. Polarizing indeed.

Re:gosh

[Wildclaw]

Not true. Copyrights material or patented text is not property.

The property is the copyright or the patent covering the above material. It is a very important difference that has huge implications.

Re:gosh

[Anonymous Coward]

Sharing is a good thing.

And many corporations still believe sharing is a virtuous thing. Just look at how freely they "share" all my personal data.

Re:gosh

[subreality]

What other law today is broken so oftenyet carries such a large penalty for those whom are caught? Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.

I agree that copyright law is wildly unjust, but I cannot overlook:

• The War on (some) Drugs, which regularly brings about the ruin of everyone from nonviolent dealers, to kids busted for simple possession, to chemo patients, to innocent bystanders.
• Sex crime laws, especially Megan's law and other sex offender registration laws, which brands people for life as sex offenders, often for crimes such as urinating in public, with dire consequences. Other sex crime laws enforce wildly disproportionate prison sentences for nonviolent crimes, vastly exceeding what even murderers and other violent criminals routinely get.
• Three Strikes laws, and any other law that limits a judge's ability to pass a lenient sentence based on circumstances. I'd bet most people have unwittingly committed at least three nonviolent felonies in their lives - the few that get caught spend 25 to life in prison, sometimes for crimes as small as shoplifting.

Re:gosh

[psxndc]

How can someone argue copyright is unconstitutional when it's in Article I, Section 8??

Seriously, what the hell?

[netwiz]

This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on. There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.

Re:Seriously, what the hell?

[Shakrai]

There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place

What, you mean to suggest that admitting to committing the activity that the plaintiff claims caused them financial harm during a civil suit is not necessarily the best way for the defendant to proceed? Say it isn't so!

Fair use has to be one of the lamest arguments ever made to support file sharing. Mind you, I've done my fair share of downloading in my day, but I never would have claimed that fair use as a justification for doing so. If you and I both have copies of Civ2 and my CD got destroyed somehow then it might be fair use to make a copy of your CD. The last time I checked though most file sharing networks don't operate on this one to one principle -- they share the files with anybody who is interested in them. I'd really like to hear the brain trust at Harvard explain how that's fair use.

Sounds to me like the defendant needs a better legal strategy. Failing that, perhaps he should have his Harvard team start studying up on Title 11, Chapter 7 of the US Code. He might need it soon......

Re:Seriously, what the hell?

[rs79]

On the other hand, everybody shares music and sales haven't been devastated. You can't make illegal something everyone does, a mere vote fixes that.

I agree with Neeson that, circa 2010, sharing music is "fair use" under the ideals that is supposed to engender.

As a society we want to reward creativity, not encourage regulatory cartels.

Re:Seriously, what the hell?

[NeutronCowboy]

Uh, what do you suggest the rational means would be?

1) Pass a new law. Let's see, a congress critter goes for... however much Disney is willing to pay, +$1.
2) ??
3) Profit. Or jail. Or something like that.

Sorry, in this case, the rational mean is vastly outgunned by specific corporate interests.

What defense would you suggest that goes beyond a plea-bargain? How do you propose to work with a system that is so completely balanced in favor of corporate copyright holders?

Sometimes, it does take an act of rebellion to set things right.

Re:Seriously, what the hell?

[Anonymous Coward]

This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.

Sounds like the EFF.

Re:Seriously, what the hell?

[paulsnx2]

You claim "There's no 'fiar use' here", but in fact fair use is defined in the law. Section 107 of the copyright law (title 17, U. S. Code) states that Fair Use sets out four factors by which use might be considered fair (with no quotes).

                  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
                  2. The nature of the copyrighted work
                  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
                  4. The effect of the use upon the potential market for, or value of, the copyrighted work

None of these factors have been extensively examined that I know of. The fourth factor is rather critical in this case, and I am not aware of any serious research that would suggest the value of music has suffered by file sharing. In fact, quite a bit of evidence to the contrary exists. If none of this evidence was submitted by Neeson, then this is his own fault.

Re:Seriously, what the hell?

[Anonymous Coward]

This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on.

So why not let the jury do the ruling as they are supposed to? The judge really shouldn't be ruling on much of anything at this stage.

Re:Seriously, what the hell?

[Anonymous Coward]

In what universe is it that "sales haven't been devastated"?

Do you have any idea how many record company employees have been put out of work, and how many artists/bands have been dropped from their labels?

Fair use is a beautiful thing... but one of the most important parts of deciding if a particular use is "fair" is whether it will damage the market for content.

Re:Seriously, what the hell?

[Timothy Brownawell]

This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on.

So why not let the jury do the ruling as they are supposed to? The judge really shouldn't be ruling on much of anything at this stage.

I always though that juries were supposed to decide facts, and that the judge was supposed to take the facts (as determined by the jury or agreed to by both sides) and decide what the law says those facts mean. This sounds like everyone agrees on the facts, and the question is whether the law says those facts mean "fair use" or "copyright infringement".

Re:Seriously, what the hell?

[Repossessed]

The judge's ruling against fair use as a defense is spot-on.

Except that judges aren't supposed to rule if its fair use or not, thats a jury question.

Re:Seriously, what the hell?

[shark72]

The "no fair use here" statement referred to the fact that fair use doesn't apply to this case. The GP was not stating that fair use doctrine doesn't exist.

"None of these factors have been extensively examined that I know of."

Take a class on copyright law and you'll experience the joy of extensively examining cases in which fair use was invoked. You'll wish you never heard the phrase.

"The fourth factor is rather critical in this case."

No, it's not.

Potential market applied in Sony v. Universal because recording a TV show or a movie wasn't a direct substitute (direct market replacement) for watching the TV series or going to see moies in theatres. It doesn't apply here for the fundamental reason that this case is about distribution, and because a downloaded MP3 file is a perfectly acceptable substitute for the same MP3 downloaded from an online store (people who tell you that they like to torrent albums and then buy a copy on iTunes are generally lying). Remember, application of the potential market clause doesn't apply just to that particular defendant; the court looks at the act in abstract and its replacement for the direct market.

Re:Seriously, what the hell?

[FishWithAHammer]

I agree with Neeson that, circa 2010, sharing music is "fair use" under the ideals that is supposed to engender.

I'm guessing you don't even know what fair use is if you're willing to make such an insane claim.

Re:Seriously, what the hell?

[rs79]

" I'm guessing you don't even know what fair use is if you're willing to make such an insane claim."

Never guess. I know how fair use and fair dealing apply in a couple of countries, and while I couldn't tell you how it works in, say Iceland, I understand what the law says and more importantly what it's supposed to do.... and the skepticism the law has for monopoly control.

If you can show no harm to the music industry and in fact show its thriving then this becomes an issue of If you can show no harm to the music industry and in fact show its thriving then this becomes an issue of anti-competative action as a new paradigm could very well easily coalesce out of the tattered shreds of the RIAAs monopoly; that's what they're fighting for, their right to monopolize and to prevent some sort of innovation that will replace them.anti-competative action as a new paradigm could very well easily coalesce out of the tattered shreds of the RIAAs monopoly; that's what they're fighting for, their right to monopolize and to prevent some sort of innovation that will replace them.

If you're going to tell me it's about parody and excerpts, go read a bit more. There are constitutional vs. statutory issues for one thing.

Re:Seriously, what the hell?

[Anarchduke]

This universe

http://yro.slashdot.org/story/09/07/27/2219257/Music-Industry-Thriving-In-an-Era-of-File-Sharing

Re:Seriously, what the hell?

[sanosuke001]

There is no fair use that falls under the current laws. However, I would say that it should be fair use. If he owns the albums or has purchased the songs from a digital retail store, then him sharing them is just another way of helping others device-shift their collection. He wouldn't be forcing anyone to break the law; it should be their responsibility to do the right thing, not his.

Re:Seriously, what the hell?

[Hatta]

This "defense" cooked up by Neeson's retard students is absolute malarkey

I agree.

The judge's ruling against fair use as a defense is spot-on.

Shouldn't that be up to a jury to decide?

Re:Seriously, what the hell?

[Cajun Hell]

What, you mean to suggest that admitting to committing the activity that the plaintiff claims caused them financial harm during a civil suit is not necessarily the best way for the defendant to proceed? Say it isn't so!

I think the shock here isn't the activity itself. It was that that this defendant is a law student (theoretically and ideally, a lot more informed than most Slashdotters about how courts work in the real world) and had a lot of pre-trial swagger, as though he had found a statute (or more likely, a decision) that covered his ass and was sure he was going to win and embarrass Sony.

Now we have a story that not only has Fair Use been ruled out (almost a minor point) but a strong suggestion that Fair Use (?!) was this guy's case.

Lame, Tenenbaum. Extremely lame.

Re:Seriously, what the hell?

[Anonymous Coward]

You can't make illegal something everyone does, a mere vote fixes that.

Most people don't vote. Or more precisely, they vote for Democrats and Republicans (nearly the same thing as not voting). They almost never vote for representatives that will pass the laws that they want. They vote for whichever corporations bought the best commercials for their candidate.

Music sharing won't be fair use until long after most of society thinks that it is fair.

Re:Seriously, what the hell?

[FishWithAHammer]

How is giving away, in its entirety, a copyrighted work anywhere near "fair use"? Your post makes no sense and fails to address this very basic issue; causing harm to the copyright holder is only one part of the fair use test and you can't contort your position (in an intellectually honest manner) to satisfy the others.

(And they're not thriving, though that isn't necessarily because of piracy. Don't get me wrong; I don't like the RIAA, at all. But I create intellectual property too, and I don't need it pirated by people too cheap to actually buy it, so I can't be OK with RIAA members' works being pirated, either.)

Is the defendent screwed?

[ammorais]

Seems to me like this is one more case of defense blowing up the chances of success on the case.
Isn't the defendant totally screwed since he already admitted guilt. If so, how can the defense allow the case to be lost before trial.

Re:Is the defendent screwed?

[ammorais]

Troll. WTF? What is troll about my comment???

Re:Is the defendent screwed?

[Foobar of Borg]

Troll. WTF? What is troll about my comment???

Someone disagreed with you, so they modded you troll. Or, to use a slashdot meme (and looking at your UID): You must be new here.

Re:Is the defendent screwed?

[ammorais]

Yes. I'm relatively new. Seems now that my last post was useless. But I'm learning.

Re:Is the defendent screwed?

[Anonymous Coward]

Troll. WTF? What is troll about my comment???

This is the troll part.

Re:Is the defendent screwed?

[TheRealMindChild]

Isn't the defendant totally screwed since he already admitted guilt

No, but it leaves lesser directions to go if it fails. Think "Yes I did shoot him! But I was defending myself!"

Re:Is the defendent screwed?

[Anonymous Coward]

This bit:

Neither Emacs or Vi are my primary editors... ..and I'm not ashamed!!!

Saw this coming

[Anonymous Coward]

What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers. I certainly don't support the RIAA in their war on file sharing, and 1.92M is absurd, but this was a weak defense from the outset. I hope they come up with something better. Its frustrating to watch a fight in which both sides are using only the most inapplicable and irrational arguments available.

Re:Saw this coming

[Rydia]

Part of the problem with /. and the legal community is that there are a lot of professors that agree or are sympathetic to the prevailing viewpoint, so they get thrust up into the limelight. To complicate things, most people here are engineers or other technology-oriented people, so their experience and memories of professors are people who showed us circuit diagrams and explained the difference between RISC and CISC processors. We're used to professors giving dry facts, so we trust them to essentially give "the truth."

That's not really what you get with law professors. Few professors are deluded as to what the law is, but since they don't actually practice law in most cases, their personal views can sometimes cloud their judgment.

As an example, there are three ways states handle accomplice liability, a less, moderate and more strict approach. Academics adore the strict approach. The problem is, you can count the number of states that adhere to this approach on one hand. After sticking it in a lawnmower.

But instead of plainly laying out who does what, the preeminent criminal law textbook gives overviews of the two approaches that essentially represent the entire country, and then goes much more in-depth into what the author refers to as "the better view."

Is this professor disconnected from reality? No. He just thinks he knows what the law should be. Lots of professors are like that, to varying degrees, and it's unavoidable to some extent. But it's a good lesson to take away; always take anything on any contentious issue a law professor says with a healthy dose of salt.

Re:Saw this coming

[Anonymous Coward]

You don't have to plead guilty to plead fair use. In fact, it is common, and in fact expected, for a defense to try multiple defenses, even multiple defenses that are inconsistent with one another, to see what sticks. You don't need the court to buy your best argument, you need the court to buy AN argument.

The fact that they tried "fair use" speaks to the competence of the students, not the incompetence, because they had nothing to lose by trying.

IANAL, but I took law classes, and this was clearly laid out as a reasonable and normal thing to do.

Captcha: Prejudge

Re:Saw this coming

[Anonymous Coward]

What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers.

Don't count them out yet; they may be a lot smarter than you think.

Remember when the **AA were sending out large packets of "settlement agreements" to a lot of universities, haughtily directing the administrators to find out which students were using particular IP addresses at particular moments and to distribute the forms to the offending students? Of all the universities, only Harvard told them, in effect, "Eat our collective ass. We decline to become your unwilling, unpaid agents. Come back with valid, individual, judicially-signed sub poenas or stop wasting our time."

The harassment of Harvard stopped immediately. The rest of the universities continued to cooperate.

Only option left

[jmorris42]

The **AAs have gone for the nuke option so the defense should as well. Toss the lawyers (they would risk disbarment) and go for a Jury Nullification. At this point there isn't much to lose, play the trial out by the book from here and the conclusion is predetermined. But if the defense goes for a nullification there is a very non-zero chance of pulling it off. Or getting a mistrial declared.

Re:Only option left

[Anonymous Coward]

Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy). It's a lose-lose strategy.

Re:Only option left

[Anonymous Coward]

Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy). It's a lose-lose strategy.

A mistrial is not a loss for the defendant.

Re:Only option left

[Anonymous Coward]

Judges often go so far as to instruct the Jury: "You cannot disagree with the law. You can only determine whether or not it was broken."

Some Judges go a step further and make all the selected jurors swear an oath that they will not disagree with the law. That is exactly what happened to me when I served jury duty (well, almost served, as I was the prosecuting attorney's first pass...and not by my intentional doing....I never mentioned jury nullification, nor played any of those tricks that lazy bastards play to weasel out of the greatest amount of political power they will ever have in their lives).

In theory, anything you say in the deliberation room is protected speech. So, if you talk the other jurors into jury nullification, that should be ok. Except that jurors can and have been tossed in jail for doing just that. They were eventually released on arguments of the deliberation room speech being protected, but there was no restitution made.

The bottom line seems to be this: judges hate juries. They want to rob a jury of as much power as possible, while still putting the appearance of moral responsibility for the final decision upon them.

Not that I can really blame them. Most juries are carefully selected to be the stupidest out of the lot. If I were a judge (presumably well educated, experienced in the law, and capable of abstract thought) I would hate juries too. Being bound to the will of the lowest-common-denominator has GOT to be frustrating.

Re:Only option left

[NeutronCowboy]

If a juror even mentions jury nullification, they'll be off the bench in no time flat. Stop getting legal advice from pamphlets.

Re:Only option left

[jmorris42]

> If a juror even mentions jury nullification, they'll be off the bench in no time flat.

There isn't much a corrupt judge can do to stop the defendant from doing it. Lawyers can be threatened with everything up to and including disbarment and even jail. But the defendant in this case is facing certain ruin, what can a Judge do that is worse than that? And once the jury is locked in to deliberate there isn't much of a way to control what they do from that point on.

Jury nullification is dangerous, yes. And the **AA's even have a certain rightness to their cause. But multi-million dollar verdicts for sharing files vs the slap on the wrist the justice system hands out for serious violent crimes is silly. So if there were ever a time to go for nullification this is probably it.

Re:Only option left

[mindstormpt]

There comes jury nullification again... And people talk about the RIAA, now this is a lobby.

Re:Only option left

[FishWithAHammer]

And the **AA's even have a certain rightness to their cause.

This is pronounced "all the rightness of the situation," just so we're clear...

But multi-million dollar verdicts for sharing files vs the slap on the wrist the justice system hands out for serious violent crimes is silly.

This sounds like an argument for stronger sentences for violent crimes, not reducing fines for these torts.

Re:Only option left

[Draek]

One has to wonder, though, about a right you enjoy only for as long as you don't try to use it...

Re:Only option left

[Anonymous Coward]

There's this concept called "contempt of court." Maybe you should look it up. If the defendant choses to defend themselves and flagrantly and repeatedly violates the judge's orders, the judge can just declare a mistrial and lock the defendant up until he's ready to cooperate with the due process of law.

Re:Only option left

[Theaetetus]

There isn't much a corrupt judge can do to stop the defendant from doing it. Lawyers can be threatened with everything up to and including disbarment and even jail. But the defendant in this case is facing certain ruin, what can a Judge do that is worse than that? And once the jury is locked in to deliberate there isn't much of a way to control what they do from that point on.

Civil case, dude, not criminal. There's a concept called "judgement notwithstanding the verdict". If the judge believes that there's no way that a reasonable jury could possibly have ruled the way they did, the judge can reverse it. If the defendant fires his lawyers so they can't face sanctions and only talks about jury nullification, aside from potential contempt charges, the judge could simply find in favor of the RIAA, regardless of any decision from the jury. This is why jury nullification only comes up in criminal cases.

Re:Only option left

[Anonymous Coward]

I've been on a jury. There's no bench.

Re:Only option left

[Anonymous Coward]

Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy).

It's my understanding that, if you want to be kicked early, all you have to do is ask, during voir dire, "Your Honor, will we be instructed on our right of Jury Nullification?"

Bitching and moaning.

[jellomizer]

Sometimes the Judge needs to set the bar at a different level. Even if it is not in our sides favor. Fair Use Defense is very loose set of rules with a huge gray area, and would really need a higher court to mark such lines. And the Time and effort to prove fair use would be long and laborious and only give a small advantage to the case. We really need to debate more concrete issues. If we loose then we can try for a higher court. Who may be more willing to attempt to draw the fair use line. However if that line is drawn it may not be to our favor as well.

Re:Bitching and moaning.

[shentino]

Fair use is a clear set of rules.

It's *applicability* is the gray area. And as a matter of fact (no pun intended), it's for a jury to decide.

Which is why the judge in this case is being a braindead moron.

Re:Bitching and moaning.

[FishWithAHammer]

It depends on the state, actually. Many states restrict questions of law to the judiciary, not to the jury.

And jury decisions, in many states where they have input on the law itself, can be appealed to--you guessed it--the judiciary.

But in general, the applicability is only the purview of the highest court you can get to review the case. Almost never does that include a jury.

Re:Bitching and moaning.

[selven]

I have to agree here. Redefining fair use is something that should be left to the Supreme Court to decide, not some town judge.

Sold out or bought out.

[Anonymous Coward]

Seems just like politicians Judges are fungible too. The RIAA pays lawyers well.

Strike another victory up for the Guild before a trial even starts.

We have to break their death grip on our country.

Several Readers? What about NewYorkCountryLawyer?

[johncadengo]

Where is NewYorkCountryLawyer when you need him?

I don't know what to believe without NewYorkCountryLawyer weighing in his opinion!

There's an answer to this...

[Svartalf]

...don't use their stuff.

Seriously. If you don't like what you're seeing. Don't buy it. Don't share it.

Hell...don't listen to it wherever possible.

There's enough cool music from indies that have no connections whatsoever with RIAA that you can satisfy your musical tastes in most cases without making deals with the devil.

If you do that, they won't have your money.
If you do that, they won't have a leg to stand on to come after you.

Opt.
Out.

You're customers, not consumers- and if you don't like what you're seeing, you need to stop buying. If you're not buying and using, you're consuming, but not paying- which is playing the game wholly by their rules and you will eventually lose.

Re:There's an answer to this...

[Anonymous Coward]

But... but... but the new Lady Gaga comes out next Tuesday! I'll boycott the RIAA after then, I promise.

Re:There's an answer to this...

[hedwards]

So, you're one of those pirates that destroys the industry by not handing over the prote... er not buying CDs. How are they supposed to stay in business with you refusing to pay for their poorly recorded garbage?

Re:There's an answer to this...

[admiralcapacitor]

Problem with this is they are trying to get laws passed so that no matter what you listen to, they will get some amount of money.

Re:There's an answer to this...

[Svartalf]

And if they do, I'll be fighting the passing of those laws and fighting the removal thereof.

They're not entitled to money from me if I don't buy/consume their crap. Unless the laws in question allow me to consume ANYTHING from them without any further interference, what basis would they have for collecting that money from me? Potential piracy? Uh...I don't see how that would stick.

Re:There's an answer to this...

[Svartalf]

The funny thing is, they're not.

Re:There's an answer to this...

[russotto]

And if they do, I'll be fighting the passing of those laws and fighting the removal thereof.

You and Don Quixote, Esq. With equal success.

Re:There's an answer to this...

[Anonymous Coward]

They'll just blame their problems on pirates even more *shrug*

Re:There's an answer to this...

[Darkness404]

The problem is, the RIAA executives are so screwed up in the head that -any- drop in profits means "ZOMG PIRATES!!!!1!1!11" they don't think rationally. Any drop in profits to them is always caused by "pirates" not that the song was crap, that people are boycotting the RIAA, etc. its always "pirates" to them. So while its good and all to boycott them, thinking its going to make a change is quite idealist and won't make a drop of difference in the world really, but keep trying.

Re:There's an answer to this...

[Anonymous Coward]

Unless the laws in question allow me to consume ANYTHING from them without any further interference, what basis would they have for collecting that money from me? Potential piracy? Uh...I don't see how that would stick.

It already has in Canada under the blank media levy. Don't be so quick to disbelieve.

Re:There's an answer to this...

[Anonymous Coward]

Yeah, but Canadian males are limp-wristed. That will never happen in the Good Old U.S.A.

Re:There's an answer to this...

[jesset77]

Alright svar, I'll bite.

Are you saying that if I didn't buy RIAA music, and if I didn't pirate RIAA music, then Tenenbaum wouldn't have ever been sued?

No? Oh, whew! My bad, it almost sounded as though you were implying that what I do makes a god damned bit of difference in the world. ;3

Oh! OK, no I think I understand, thanks for clarifying. What you really mean is that if I choose not to consume Copyrighted Material, legally or illegally, then I will be completely safe from *AA bullying. Well, that shouldn't be so hard. The public domain presently accounts for, what was it, upwards of 0.1% of all human knowledge? I'll just go sit in this darkened room then and tell myself ancient nursery rhymes to pass the time. :3

Re:There's an answer to this...

[shentino]

cat /dev/urandom > /dev/dsp

Much better quality than the RIAA's crap.

And if they can tax that then I'll fire the first shot of the new revolution.

Re:There's an answer to this...

[thegrassyknowl]

How are they supposed to stay in business with you refusing to pay for their poorly recorded garbage?

By paying of law makers to pass laws that prove you must be violating copyright if you don't pay their 'protection' fees and receive little shiny tokens of protection for it:

"But your honour, he didn't have a single one of our CDs when we illegally raided his house. That proves he pirates our stuff!"

Re:There's an answer to this...

[FishWithAHammer]

No. What he is saying is that the ethical course of action, if you disagree with the RIAA's actions, is to not consume RIAA material. It's not that hard if you choose not to do it; I don't, because frankly I am just not bothered enough by them going after obviously guilty file sharers, but if you had any steel in your spine you'd find some principles and refuse to consume it.

Re:There's an answer to this...

[Anonymous Coward]

So while its good and all to boycott them, thinking its going to make a change is quite idealist and won't make a drop of difference in the world really, but keep trying.

There is a difference. The RIAA can blame pirates with your money in their pocket or the RIAA can blame pirates without your money in their pocket. I take it you either lack money (or pockets). I save over half my take-home, this is not idle talk. My entertainment budget (including satellite, ISP, media purchases, home phone) is under $100/month.

Re:There's an answer to this...

[Xaemyl]

Philosophically, you're spot on. But try telling this to the millions of teenyboppers that ZOMGMUSTHAVETHENEW , or ZOMGMUSTSEETHENEW .

Re:There's an answer to this...

[Xaemyl]

Blargh. HTML fail. Not enough caffeine yet. heh That SHOULD have read: ZOMGMUSTHAVETHENEW (insert the name of boy band here) or ZOMGMUSTSEETHENEW (insert name of piece of shit summer blockbuster here).

Re:There's an answer to this...

[shark72]

Reading earnings releases makes it clear that the record companies blame income loss on the same thing that we do: the general downturn in the economy, the insurgence of digital music sales (which allow people to buy just a track at a time), and other things that are patently obvious. Similarly, the retail industry as a whole is going through bad times, but the retailers don't blame this on shoplifters.

People in the music industry lie. This doesn't mean that we should lie, too. And underestimating your enemy is a dangerous mistake.

Re:There's an answer to this...

[jesset77]

if you had any steel in your spine you'd find some principles and refuse to consume it

Wait, no really? See, here is what I am talking about. I can't even sit in a darkened room humming to myself without being accused of filching the RIAA goods!

Re:There's an answer to this...

[Draek]

And just to help you all to do so:

Magnatune.com
Jamendo.com
LegalTorrents.com
Archive.org

If anyone has any other link, feel free to post them as well.

Re:There's an answer to this...

[Anonymous Coward]

It's like "Leave Brittany Alone" is actually good advice... who knew???

Re:There's an answer to this...

[theLOUDroom]

The thing you're missing is that thesse people don't just own a portion of our current pop culture, they own a significant portion of our collective cultural history.

Opting out would be like refusing to read history books because they are copyrighted. The cost to you as an individual is much too high. It is unreasonable to expect a person to simply not listen to music currently owned by major record labels.

Re:There's an answer to this...

[russotto]

Wait, no really? See, here is what I am talking about. I can't even sit in a darkened room humming to myself without being accused of filching the RIAA goods!

Yes, you can. It's ASCAP which will come after you for that.

Re:There's an answer to this...

[Anonymous Coward]

They're not entitled to money from me if I don't buy/consume their crap. Unless the laws in question allow me to consume ANYTHING from them without any further interference, what basis would they have for collecting that money from me? Potential piracy? Uh...I don't see how that would stick.

Simple -- they just claim to represent whatever artist you buy. How much emotional investment are you willing to put into disproving their patently false claim? Can you even start that process and make next month's car or house payment? Your wife or kids on board for that?

I believe in the UK, these outfits are legally allowed to "represent" any artist, even if the artist has never head of them.

Remember the woman they went after because someone on the phone heard her playing classical music to horses in her barn, because the horses found the music calming? They tried to nail her for a "public performance" to the horses.

They've recently tried to get ringtones defined as "public performances".

Remember, these IP guys are the most grasping, mother-fucking bastards on earth. With the possible exception of medical insurers and Big Pharma.

But it's close.

Re:There's an answer to this...

[FishWithAHammer]

Of course you can. Claims to the contrary are fearmongering tardspew.

Re:There's an answer to this...

[Anonymous Coward]

Let them scream "ZOMG PIRATES", just don't buy.
And they'll start flailing and foaming from the mouth, and still don't buy.
And as they start to reorganize to coop with the loss of profit, still don't buy.
And finally, they collapse...

By then you're so stuck to indies, you don't care about the rest :P

Re:There's an answer to this...

[notrandomly]

don't use their stuff

Yeah, and exclude yourself completely from the current culture. That's the problem, you see. These cartels basically own our culture, and are forcing us to pay for it. And if you don't participate, you will be an outsider. It's impossible to not participate anyway, since we are blasted with propaganda from the information cartels everywhere we move.

Maybe the law is wrong then

[pembo13]

If

the proposed defense would be "so broad it would swallow the copyright protections that Congress has created

then maybe the law, written by mortals, is wrong. It's not like the defense goes against the laws of nature and can't possibly be right.

Re:Maybe the law is wrong then

[benjamindees]

Lawyers (and judges) these days have literally zero concept of a law being "wrong". They are trained and selected through years of education to bring cases to an equitable resolution. No party actually wins or loses. They settle. The lawyers win.

They have evolved to this point through natural selection and their own best interests.

Laws are no longer scrutinized for logical consistency or correctness or even adherence to any type of higher law. They are merely accepted as the will of the legislature and added to the growing pile of regulations to be forced on the plebes.

The old stereotypes of Perry Mason or Matlock getting at the truth of a legal question are long gone. There is no more truth. There is only a vast gray area in which to bring both parties to some type of agreement. And if they can't agree, well then just rig the system by disallowing any argument that might lead to resolution of the conflict at hand.

Listen to this judge. Even allowing the defendant to utter such a phrase as "fair use" to a jury would be somehow unfair to the Congress, who after all worked very hard to try to make a fair Copyright law. We wouldn't want to offend them with the possibility that twelve citizens might find their laws to be fundamentally flawed, through anything resembling a fair trial or due process or anything.

Our latest Supreme Court nominee didn't even like Perry Mason. She preferred the prosecutor who continually brought half-assed wrongful prosecutions of innocent citizens before the court and lost every week. She probably felt sorry for him. She probably went into law in order to bring some equity to the system, and give him a chance to win more often. Surely the fact that he lost every time meant that there was some inherent flaw in the system, right? Wasn't he being discriminated against somehow?

Re:Maybe the law is wrong then

[Kjella]

Yes, it is. But unless it's against the constitution or some other fundamental rights or is very unreasonable to Congress' intention I don't see how it is the judge's place to change it. Every time I see something about jury nullification or activist judges I'm thinking that's because the US has so royally screwed up the parliamentary system. It's one to nine judges. There's twelve jurors. They're not supposed to override hundreds of millions voting in representatives that again voting in laws, not unless it's really really serious. You don't fix a broken democracy by creating a vigilante oligarchy of judges or killing consistency and fairness by jury nullification. How about giving people a better choice than a coin flip? I can promise you that it works, once they parties to look out both to the left and the right politicians can't afford to make nearly as many unpopular decisions or ignore the public. You might even see the return of real democratic and republican parties, not the parody of themselves that most end up as after a while. Of course, the only ones that could change that are those with everything to lose, now that's what is truly without checks and balances...

Re:Maybe the law is wrong then

[FishWithAHammer]

Seeing as how Sotomayor is supposed to have "empathy" and "understanding," I'm pretty sure she'd be favoring the "underprivileged" defendants, not the prosecutor.

Re:Maybe the law is wrong then

[91degrees]

the thing is, the law is a blunt instrument. Politicians make laws that cover the general case as best they can. Trials cover specific cases.

Is it infringement of copyright to read a story to a class of children? A strict reading of the law may well say it is. It's one of the many cases that the authors of the many pages of copyright law didn't consider. Should a publisher sue a teacher, it's up to the jury to decide whether the law applies to this specific case.

Re:Maybe the law is wrong then

[Anonymous Coward]

They're not supposed to override hundreds of millions voting in representatives that again voting in laws,

The representatives have been bought by the RIAA et.al. (cf. the Mickey Mouse copyright extension, DMCA etc.). The population have no representatives on this subject and jury nullification on this particular trial, and any other individual trial that comes up, is entirely appropriate.

Re:Maybe the law is wrong then

[Theaetetus]

Listen to this judge. Even allowing the defendant to utter such a phrase as "fair use" to a jury would be somehow unfair to the Congress, who after all worked very hard to try to make a fair Copyright law.

You mean the copyright law that includes fair use, at 17 USC 107? "Fair use" is a legal definition, coded into the statute. It doesn't mean "waaaah, it's not fair". This is the statute:

Notwithstanding the provisions of sections 17 U.S.C. Â 106 and 17 U.S.C. Â 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Re:Maybe the law is wrong then

[Anonymous Coward]

Actually, his defense was "I wanted to do it so it should be ok". Like a shithead, you have decided that it should be OK to violate people's rights and take anything you want as long as you do it for personal use and don't make money at it. Of course, he actually saved money by not spending the money to get the songs. But, I am betting in your book that doesn't qualify as financial gain, right, shithead?

Re:Maybe the law is wrong then

[DNS-and-BIND]

Uh, maybe you didn't get the memo? We are in the post-modern era - there is no truth, only different points of view. Sotomayor will represent a point of view that is traditionally disadvantaged, and bring benefit to the groups that she represents. This isn't new thinking, it's been around for decades - maybe you're a mouth-breathing moron who never set foot inside a university?

Re:Maybe the law is wrong then

[Anonymous Coward]

Trap sprung. Idiot detected.

Re:Maybe the law is wrong then

[benjamindees]

Okay, well, here's the thing. And it's kind of a basic thing in regards to US government. And it's kind of a fundamental aspect of what you're arguing too, if you have the intellectual honesty and mental ability to take it to it's ultimate consequences:

I don't recognize the rights of anyone who doesn't recognize mine.

And if the US government is going to continually fail to recognize the rights of US citizens, then we will no longer recognize the US government.

And maybe I didn't go to Princeton because I didn't have the right skin color, unlike Ms. Sotomayor. But I still had better grades and test scores and credentials than she and most of the flunkie retards in the US government. And maybe I was still paid a lot of money to attend university and I fully understand the origins and consequences of moral relativism. Maybe.

Re:Several Readers? What about NewYorkCountryLawye

[hedwards]

He's here. He just modded you funny.

judicial activism

[Anonymous Coward]

you've nailed it. this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it. judges can't over rule the law, merely work within it's boundries.

Over ruling law is often called "judicial activism".

Right now I'm thinking...

[FunPika]

Tenenbaum will lose and be forced to pay even more than Jammie.

Re:Right now I'm thinking...

[harlows_monkeys]

Tenenbaum will lose and be forced to pay even more than Jammie.

You really think he's going to be as stupid as she was? At every step of the process, from before the first lawsuit was filed, after it was won, before the appeal was filed, before the second trial, and after the second trial, the RIAA has offered to settle with her for a few thousand dollars. She keeps refusing to settle.

If he doesn't exhibit a similar level of brain death, he'll be forced to pay a few thousand dollars, tops.

Grounds for appeal?

[danaris]

Forgive me for having learned all I know about our criminal justice system from Law & Order (and similar), but wouldn't this be absolutely perfect grounds for appeal? Instructions/rulings from the judge that fly in the face of established precedent, common sense, and possibly even black-letter law...my understanding was that this sort of thing is exactly the stuff that gets verdicts overturned on appeal, which judges don't like...

Is Mr. Beckerman around to give us some insight into this...?

Dan Aris

Re:Grounds for appeal?

[shentino]

I'm not beckerman but I suspect that not giving a jury proper deference on an issue of fact such as applicability of fair use would be a reversible error.

I will of course be happy to be corrected if wrong.

Re:Grounds for appeal?

[FishWithAHammer]

It does not fly in the face of established precedent--if you read what the judge said, this was essentially stated--but yes, it can be appealed.

Re:Grounds for appeal?

[harlows_monkeys]

Forgive me for having learned all I know about our criminal justice system from Law & Order (and similar), but wouldn't this be absolutely perfect grounds for appeal? Instructions/rulings from the judge that fly in the face of established precedent, common sense, and possibly even black-letter law...my understanding was that this sort of thing is exactly the stuff that gets verdicts overturned on appeal, which judges don't like...

What does that have to do with this case, where the judge's rulling follows established precendent, common sense, and black letter law?

Judges over-ruling law...

[benjamindees]

Actually judges can (and should) over-rule the law. The judiciary exists as a check on both the executive in the application of the laws as written, and on the legislature in the drafting of laws that are in accord with constitutions and with individual rights.

If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.

As an aside, one of the more telling exchanges in the recent hearings for Judge Sotomayor was when the new Senator Franken naively asked her whether individuals have a free-speech right to unfiltered internet access. Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress. This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system within the US and has led directly to the recent wholesale approval of human rights violations that we have seen in this country.

Interpreting individual rights in deference to acts of Congress or to claimed executive privileges has neutered the concept of individual freedom and human rights in the US, in cases involving everything from individual property seized by governments for the benefit of private developers, to the war on drugs, gun control, illegal wiretapping and habeas corpus violations of US citizens. We have reached the point that now not only do we have judges ignoring rights enumerated in the Constitution which they are sworn to uphold, but also ordering defendants not to defend themselves on the basis of these rights and denying them due process as well!

The judiciary as an enforcement arm of the sovereign was a notion we as a country should have cast aside with the Declaration of Independence. The fact that we have not is prima facie evidence of a need for the tree of liberty to be again refreshed in this country.

Re:Judges over-ruling law...

[zippthorne]

I was going to mod you up, but then I remembered the nutrient that the tree of liberty thrives upon and became depressed.

Re:Judges over-ruling law...

[Atlantis-Rising]

She was probably repeating the well-settled doctrine at this point that there are no natural rights. There are no inalienable human rights, merely those derived from the law and the documentation surrounding it- an interpretation of law that has been settled for close to two hundred years.

Re:Judges over-ruling law...

[Bobb9000]

I'm not sure that your summary of Sotomayor's response is entirely accurate, but setting that aside, I don't necessarily disagree with the notion that there are no "inalienable" rights. What sort of rights did you have in mind, exactly? The First Amendment says that Congress "shall make no law" abridging freedom of speech or religion. That's no law. Yet, we have laws against revealing state secrets (and there are some valid ones, like troop movements on the battlefield, etc.), against the classic "'fire' in a crowded theatre", against slander. Are these all unconstitutional? Can the government really put no controls whatsoever on speech? I don't think that's tenable in a real society. The same goes for every other right guaranteed in the Constitution - if the government can produce a good enough reason, Congress can pass laws that limit those rights. They just have to be really, really, really damn good reasons. I tend to agree with the sentiment, expressed by Jefferson, Lincoln, and others, that the Constitution isn't a suicide pact. There are times when the good of the nation takes precedence.

Just so it's clear, I haven't seen anything in recent years that comes close to the level of justification necessary to violate many of those rights. The forays into that territory made in the name of the "war on terror" are, in my opinion, completely unjustified. But that doesn't mean that we should slide into magical thinking about the nature of rights and laws. Legal positivism, at least in some of its forms, isn't the bogeyman you're implying it to be.

Re:Judges over-ruling law...

[Bobb9000]

She was probably repeating the well-settled doctrine at this point that there are no natural rights.

I doubt she was - people like Senator Graham would have pitched a fit. That doctrine is far less well-settled than it ought to be.

Re:Judges over-ruling law...

[Runaway1956]

"Come on you sons of bitches! Do you want to live forever?"
Gunnery Sergeant Dan Daly, 4 June 1918.
Leading Marines at Belleu Wood.

Depressing? Hell no. The idea of living forever is more depressing than the idea of feeding the Tree of Freedom. I mean, hey, women start looking pretty gnarly after the first hundred years.

Re:Judges over-ruling law...

[Peter La Casse]

Yet, we have laws against . . . the classic "'fire' in a crowded theatre"

For historical context, the "fire in a crowded theater" quote comes from a case where the court ruled that it is OK to prohibit dissemination of anti-war propaganda during wartime. What "fire in a crowded theater" means is "we can prohibit political speech we disagree with." It was not exactly a shining moment in the history of this country.

Re:Judges over-ruling law...

[timmarhy]

your right about laws that contridict or are unconstitutional, but the drive i was going for was if a law isn't in violation of some higher law, the judge just can't throw that law out because he thinks you should be able to download the latest brittany spears record...

Re:Judges over-ruling law...

[Bobb9000]

I'm aware. The fact that the Court hasn't always protected our rights to the degree they should doesn't change the nature of the law. Or do you think that people should be able to yell "fire!" in a crowded theatre?

Re:Judges over-ruling law...

[db32]

"unconstitutional" being the keyword there. "shitty lopsided laws purchased by assholes" are not necessarily "unconstitutional". Judges ONLY law removal should be of unconstitutional laws. Anything else IS *activist judge stuff. The various shitty laws are our own fault and must be removed by us. It is that simple. The only thing we can do to fix shitty laws is stop using shitty legislators. The only thing the judiciary is for is stopping shitty legislators from shitting directly on the constitution, they are not meant to stop them from shitting on us.

*Activist judge - This is more commonly used as an insult hurled at judges that don't rule way the insulting party wanted. However, judges that rule outside of the law without declaring the law unconstitutional are indeed being activist judges.

Re:Judges over-ruling law...

[Anonymous Coward]

Are these all unconstitutional?

The answer is, clearly, yes. If they didn't really mean 'shall make no law', then why did they say it, for shits and giggles? Moreover, if Congress wants to make a law currently disallowed by the Constitution for a really really damn good reason, why not amend the Constitution to accomodate said reason? It's not like we've never done it before, and doing any less runs counter to the rule of law we've based our society upon.

Re:Judges over-ruling law...

[Anonymous Coward]

Patriots and tyrants, baby, it's all about patriots and tyrants.

I'll gladly die as the former if you can get my hands on some of the latter.

Re:Judges over-ruling law...

[westlake]

Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress
This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system

The phrase "inalienable rights" belongs to the Declaration of Independence" not the Constitution.

The distinction is between a theory of natural rights and that of a government defined and created by the those it will govern:

"We, the People of the United States, in order to form a more perfect union...."

There are no inalienable rights in a government by compact. The First Amendment is no more sacrosanct than the Eighteenth - Prohibition.

It can be repealed - and the rules are the same.

It conflicts with John Marshall's interpretation of the Constitution - but an unequivocal grant of judicial review isn't to be found in the text.

Re:Judges over-ruling law...

[Atlantis-Rising]

A shame really. People keep dragging it out again and again, and it keeps getting knocked down again and again, but it's a lot of effort.

Re:Judges over-ruling law...

[Anonymous Coward]

"Inalienable" does not mean "inviolable." The state may violate people's inalienable rights under certain circumstances, but they can't take them away.

Re:Judges over-ruling law...

[benjamindees]

You're right that my description was both unnecessarily broad and restrictive. Instead of "inalienable" I should have said that Sotomayor expressed her belief that the Supreme Court recognizes no rights whatsoever beyond those defined by the Congress.

The rights I am concerned about are the subset of those inalienable rights defined by the Declaration of Independence (Life, Liberty and the Pursuit of Happiness) which were expressly reserved in the Bill of Rights of the Constitution.

I will not enter into a discussion of the specific boundaries of those rights as I stated my primary concern is the fact that the US judiciary currently denies their existence in complete contradiction with the Constitution of the United States and most of the several states.

Re:Judges over-ruling law...

[benjamindees]

You don't even live in the United States. You are a Subject of the British crown.

What makes you think your opinion of US Constitutional law is at all relevant?

Shut the fuck up. No one cares what you think.

Re:Judges over-ruling law...

[benjamindees]

The US Constitution is the highest law of the land. The US Constitution includes the Bill of Rights. The Bill of Rights includes the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I'm not arguing one way or another, because this particular case is irrelevant to me. But the right to "download the latest Brittany Spears record", if it exists, is certainly protected by the Ninth Amendment. All US law is subject to the Constitution and the Bill of Rights, even Copyright law.

The judiciary can only throw out laws that are in violation of the Constitution. But the protections of the Constitution are extremely broad. It is certainly not an act of "judicial activism" to throw out laws that violate the un-enumerated rights of Americans.

Re:Judges over-ruling law...

[ArsonSmith]

Yes, In fact I'd be more supportive of charging manslaughter to the person that didn't yell fire and snuck out while everyone else burned.

Re:Judges over-ruling law...

[benjamindees]

The distinction is between a theory of natural rights and that of a government defined and created by the those it will govern:

These are not mutually exclusive. I would hope that a nominee to the US Supreme Court would have, you know, actually read the fucking US Constitution and understood this, seeing as how that document is one of the primary examples of such a constitutionally-limited, federalist government with explicit recognition of both natural and civil rights.

There are no inalienable rights in a government by compact.

Sure, there are. There are the rights reserved in the Bill of Rights.

The First Amendment is no more sacrosanct than the Eighteenth - Prohibition.

Actually, yes some Amendments are more "sacrosanct" than others. Amendments must have the ability to alter and override previous sections of the document that conflict with those amendments. If that were not the case, there would be no process of "amendment" whatsoever. The 21st Amendment, for instance, is more sacrosanct than the 18th.

If I wrote up a legal contract for a wedding cake that said "The cake shall be blue" and later added an amendment to say "The cake shall be red", I would be pretty pissed off if the baker brought me a fucking purple cake. I would want my amendment of "red" to override the previous stipulation of "blue". I would not want the baker to "interpret" the contract and come to some bullshit hybrid conclusion, as judges routinely do in order to justify ignoring explicitly protected individual rights written right into the fucking US Constitution.

It can be repealed - and the rules are the same.

But we're not talking about repealing anything so I'm not sure what this has to do with the discussion.

Furthermore, we aren't even talking about Amendments in relation to other sections of the Constitution. We're talking about Amendments in relation to laws passed by the legislature. And in that case, certainly the judiciary has the power and duty to interpret and strike down those laws not in accord with the supreme law of the land, the US Constitution and it's Amendments.

It conflicts with John Marshall's interpretation of the Constitution - but an unequivocal grant of judicial review isn't to be found in the text.

Article III, Section II:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution

Seems fairly explicit to me. Since it was also explicit to the second Chief Justice of the Supreme Court, I'd take his word for it and forget what your Civics teacher told you.

Re:Judges over-ruling law...

[Atlantis-Rising]

It doesn't matter what you think of my interpretation, what matters is whether it is the correct one- and it happens to be.

Re:Judges over-ruling law...

[quadrox]

Inalienable to me means that it is an absolute that cannot be changed, trivialized, overridden or in any other way affected. Inalienable means that is such a fundamental "thing" that there can be no question, no argument, no reason about it whatsoever.

If the amendments (or the rights granted therein) can be overridden in the fashion you specify, then by (my) definition they are not inalienable.

Re:Judges over-ruling law...

[Opportunist]

It's better to feed the tree of liberty than to cower in fear under the tree of slavery.

Re:Judges over-ruling law...

[Opportunist]

Dude, just like the smart soldier yells "incoming!" after hitting the ground, the smart person yells "fire" after leaving the theatre.

Re:Judges over-ruling law...

[Anonymous Coward]

Or do you think that people should be able to yell "fire!" in a crowded theatre?

Absolutely! And, they should be commended for doing so, if there is a fire, and punished if there is not.

Re:Judges over-ruling law...

[Anonymous Coward]

If the constitution is incomplete, why not take it back to the people to be updated?

If it is ignored, even in part, it weakens its authority to the point where it is ignored. i.e. Death by a thousand tiny cuts...

I'm not a yank, but I agree whole heartedly with Thomas Jefferson about eternal vigilance.

Re:Judges over-ruling law...

[Rakarra]

Really, she was correct. The only thing that the Supreme Court can decide is the law as written in the US Constitution. Inalienable rights? Great topic for philosophising with a friend, but what does that actually MEAN? The only rights and laws that the Supreme Court can rule on are those stated in the Constitution and passed by Congress. "Yeah, we know the Constitution says differently, but.. you know, inalienable rights." That wouldn't fly. The first amendment, for example, guarantees freedom of speech. The Supreme Court usually rules in the favour of free speech because it's right there in the Constitution. Of course the philosophy behind the Constitution is that freedom of speech is considered an inalienable right, and for that reason it's laid out in the Bill of Rights. But when a judge rules on a freedom of speech case, the ruling is made due to the presence of the first amendment, not due to the notion of higher rights not inscribed in law. The courts can only rule on the law. When a judge interprets a law, they are harmonizing that law with laws higher up -- as high as the Constitution if necessary, and if there is a conflict, then a portion or a whole of the law gets thrown out. At least, that's what I've always been taught "interpreting the law" means from a judicial perspective -- not that the only thing the Supreme Court does is just agree with whatever Congress passes. No judge agrees with that.

Re:Judges over-ruling law...

[Rakarra]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I'm not arguing one way or another, because this particular case is irrelevant to me. But the right to "download the latest Brittany Spears record", if it exists, is certainly protected by the Ninth Amendment. All US law is subject to the Constitution and the Bill of Rights, even Copyright law.

Sure, but it's a different section of the Constitution that gives Congress the right to create copyright laws, and the language of the Constitution is vague enough to allow for quite a bit of flexibility.

Re:Judges over-ruling law...

[Anonymous Coward]

Uhm, no - Juries exist to over-ride the law through a process called Jury Nullification. The Judge is responsible for ensuring that the law as written is correctly interpreted. Please get this right - Judicial activism is far, far worse than many of the poor laws penned by Congress.

Re:Judges over-ruling law...

[geminidomino]

It's better to feed the tree of liberty than to cower in fear under the tree of slavery.

As long as there's a TV playing American Idol and football games under the Tree of Slavery, you're not going to get many takers for that line of thinking.

Re:Judges over-ruling law...

[_LORAX_]

Appellate judges can add new interpretations of the law, trial court judges are there to apply the laws and precedents that are already in place. This makes sense because a judge should not rule on a topic that is "not ripe" for adjudication.

Re:Judges over-ruling law...

[Theaetetus]

The rights I am concerned about are the subset of those inalienable rights defined by the Declaration of Independence (Life, Liberty and the Pursuit of Happiness)

Yes.

which were expressly reserved in the Bill of Rights of the Constitution.

No. Impliedly reserved, maybe. But expressly? Nope.

Re:Judges over-ruling law...

[noidentity]

If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.

Two words: jury nullification

Re:Judges over-ruling law...

[Sun.Jedi]

Yes, In fact I'd be more supportive of charging manslaughter to the person that didn't yell fire and snuck out while everyone else burned.

That is a point most of the professional welfare recipients would argue. I would counter with the fact that your safety and wellbeing are not my responsibilities.

Re:Judges over-ruling law...

[Anonymous Coward]

Not to nitpick, but Congress' ability to pass copyright laws is actually IN the Constitution.

Overriding the copyright laws would be unconstitutional.

Re:Judges over-ruling law...

[Hatta]

I don't necessarily disagree with the notion that there are no "inalienable" rights. What sort of rights did you have in mind, exactly?

Life, liberty, and the pursuit of happiness to name a few.

The First Amendment says that Congress "shall make no law" abridging freedom of speech or religion. That's no law. Yet, we have laws against revealing state secrets (and there are some valid ones, like troop movements on the battlefield, etc.), against the classic "'fire' in a crowded theatre", against slander. Are these all unconstitutional?

Yes.

we have laws against revealing state secrets (and there are some valid ones, like troop movements on the battlefield, etc.),

And we have many many more invalid ones. The risk (absolute certainty) of abuse far outweighs the risk of secrets becoming public.

Re:Judges over-ruling law...

[benjamindees]

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

They are expressly reserved.

Re:Judges over-ruling law...

[Theaetetus]

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

They are expressly reserved.

The specific rights are impliedly reserved via an express clause. Do you see the words "life, liberty, and the pursuit of happiness" there? No? Then they're implied. Geez.

Re:Judges over-ruling law...

[benjamindees]

Sotomayor: Rights by a court are not looked at as "overriding" in the sense that I think a Citizen would think about it.

This is, flatly, wrong. And troubling. It displays a shocking disconnect between the judiciary and citizenry. In fact, it reveals a disconnect between the judiciary and even the Constitution itself.

Rights certainly override other rights in different situations. Rights are balanced against other rights outside the context of written laws every day by individuals and in the courts. Rights are in fact "overriding" in relation to laws of the Congress, as they were expressly reserved to the people in the US Constitution itself:

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The only rights and laws that the Supreme Court can rule on are those stated in the Constitution and passed by Congress.

All Rights are stated in the Constitution. The Supreme Court can rule on all of them, and has, and does. And anyone even considered for inclusion on the highest court should at least recognize this fact.

No judge agrees with that.

And that's my point. The US judiciary is currently acting in a wholly unconstitutional, irresponsible manner with regard to individual liberties. And it is being reflected in the wildly irresponsible actions of the other branches and of Americans as a whole. There is a complete breakdown of personal responsibility in this country. And it can be attributed directly to so-called "leaders" like Ms. Sotomayor who shrug their shoulders and claim an inability to so much as recognize the rights of Americans as enshrined in our Constitution.

Re:Judges over-ruling law...

[Bobb9000]

I don't think it's fair to say she doesn't recognize any rights beyond those defined by Congress either. She recognizes the rights in the Constitution, and those weren't defined by Congress.

In regard to "life, liberty, and the pursuit of happiness" (or property, depending on whether we're talking Dec. of Ind. or Locke), you're absolutely right that she doesn't consider those "rights". Nor should she, in the sense we're talking about. "Life, liberty, and the pursuit of happiness" is either a theoretical paradigm or a rhetorical flourish, depending on how you're approaching it, and neither way is a tenable basis to run a government from. You want to see the jurisprudence that would accumulate after a few years of people suing on the basis of the government denying them their right to pursue happiness? I sure as hell don't.

Also, what do you mean by, "in complete contradiction of the Constitution of the United States and most of the several states"? The Constitution nowhere talks about "life, liberty, and the pursuit of happiness", nor (to my knowledge), do most of the state constitutions. And yes, I saw your Ninth Amendment argument later on in the thread. It's ridiculous. The Ninth Amendment doesn't say a thing about what these retained rights are, making it a good aspirational sentiment for how the government should be run, but a terrible basis for jurisprudence. Which is why it's basically ignored by the courts, except when they're constructing more extended theories of rights, such as privacy rights in Griswold v. Connecticut .

Re:Judges over-ruling law...

[Bobb9000]

"Inalienable" does not mean "inviolable." The state may violate people's inalienable rights under certain circumstances, but they can't take them away.

I don't think you're going to get very far with this distinction. What exactly is the difference between a right that is consistently violated and a right that has been alienated? That you still have it in name? That's not much comfort.

Re:Judges over-ruling law...

[Bobb9000]

Possibly because it's incredibly difficult to amend the Constitution, and even when you succeed, it takes a very long time?

Now, there are some benefits to operating a country this size on a more rigid standard of constitutional interpretation, but under that model you need an easier amendment procedure, because otherwise, when the situation changes, the government can become paralyzed, leading people to discard it entirely. It's a balancing question, and I don't think the current balance is completely wrong. Not completely sure, mind you, and I don't agree with a lot of what's been going on, but I think the core method is sound.

Re:Judges over-ruling law...

[Bobb9000]

You do realize that the context of the example is yelling "fire" when there is none, thus creating a panic in which people may be trampled, yes?

Re:Judges over-ruling law...

[Bobb9000]

Do you also agree with Jefferson that "[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means"?

Government is big and messy and complicated, and the actual practice of it doesn't reduce well to slogans. It's never going to be perfect, it can be better, but it's not inherently evil, and it's really not easy.

Re:Judges over-ruling law...

[benjamindees]

She recognizes the rights in the Constitution,

Since I don't want to get into a protracted discussion of what Ms. Sotomayor does and doesn't believe based on wild speculation, here's a quote from her on what rights she recognizes:

Rights by a court are not looked at as "overriding" in the sense that I think a Citizen would think about it.

So yes she recognizes something resembling the Rights in the Constitution. But not in the way they are actually contained in the Constitution, as part of the Supreme law of the land and overriding the laws of Congress that conflict with those Rights. In some other, unconstitutional way which she doesn't really describe very well.

and those weren't defined by Congress.

One glaring detail that modern jurists have completely missed in their zeal to reconcile the foundations of US government with atheism and moral relativism and socialism and some other goofy modern philosophies is that Rights don't actually need to be defined by anyone. They are not defined by government. They are not defined by the Constitution. They are merely recognized and protected by the Constitution. They were "defined" by the "Creator". Not the Christian god. Not the Magna Charta. Not Robespierre or Washington. The nebulous "other", a bullshit pretend made-up entity to give the intractable determinists some source for the sourceless.

In regard to "life, liberty, and the pursuit of happiness" (or property, depending on whether we're talking Dec. of Ind. or Locke), you're absolutely right that she doesn't consider those "rights". Nor should she, in the sense we're talking about.

First of all, "Life, Liberty and Property" rights are recognized in the Fifth Amendment to the US Constitution, not just "Locke". So if you are now claiming that Sotomayor does not recognize those rights, then you can go ahead and retract your previous assertion.

But, quite frankly, unless you have some source for this, you're just making things up about what Sotomayor does and doesn't believe.

You want to see the jurisprudence that would accumulate after a few years of people suing on the basis of the government denying them their right to pursue happiness? I sure as hell don't.

No, of course not. I want to see government stop fucking with every aspect of people's lives completely. And that is what would happen if we had a functional judiciary with the balls to hold our government to it's original, delegated powers. But we don't. We have a lazy judiciary that doesn't want to deal with any more paperwork than necessary.

The Ninth Amendment doesn't say a thing about what these retained rights are, making it a good aspirational sentiment for how the government should be run, but a terrible basis for jurisprudence.

Yeah, and that might give the courts something to do. But instead the courts don't do a goddamn thing because they are full of worthless shirking government apologists who live on the same VIP mortgages from unconstitutionally-chartered mortgage agencies and the same retirement accounts with fraudulent unregulated banks invested in the same economically destructive human-rights-violating military contractors and getting the same free golf trips from lobbyists and the same lecture fees at unconstitutionally-funded universities as the rest of the worthless government.

Re:Judges over-ruling law...

[Bobb9000]

To address first a point from the middle of your reply, yes, I don't know what Sotomayor believes in. I only have the statements I've heard from her, and the general legal culture of the US, to go on, and I've asserted my best guess at what she believes based on them. I may be wrong, but so may you, and I don't think your interpretation works as well as mine with what I know. Hence my argument.

So yes she recognizes something resembling the Rights in the Constitution. But not in the way they are actually contained in the Constitution, as part of the Supreme law of the land and overriding the laws of Congress that conflict with those Rights. In some other, unconstitutional way which she doesn't really describe very well.

Her interpretation obviously doesn't fit with your view on the meaning of the Constitution, but your view isn't the only one in the world, and it's certainly not the only plainly correct one. From what I've heard, her view is entirely consistent with the mainstream legal understanding of US Constitutional law. You may think that's unconstitutional. I don't.

One glaring detail that modern jurists have completely missed in their zeal to reconcile the foundations of US government with atheism and moral relativism and socialism and some other goofy modern philosophies is that Rights don't actually need to be defined by anyone. They are not defined by government. They are not defined by the Constitution. They are merely recognized and protected by the Constitution. They were "defined" by the "Creator". Not the Christian god. Not the Magna Charta. Not Robespierre or Washington. The nebulous "other", a bullshit pretend made-up entity to give the intractable determinists some source for the sourceless.

So, are you saying that these rights do or don't exist? You seem to be saying that the Constitution recognizes them, but as I've said, I don't think it does. The "endowed by their Creator with certain inalienable rights" line is from the Declaration of Independence, not the Constitution, and the D of I is not controlling law in this country. And by the way, are you saying that the government should or shouldn't be reconciling the Constitution with things like atheism, moral relativism, and socialism?

First of all, "Life, Liberty and Property" rights are recognized in the Fifth Amendment to the US Constitution, not just "Locke". So if you are now claiming that Sotomayor does not recognize those rights, then you can go ahead and retract your previous assertion.

Yes, you are correct that Fifth Amendment due process is triggered by the government depriving people of life, liberty, or property. But there's a difference between being protected from deprivation by the government of these things, and having a positive right to these things. So yes, Sotomayor does (I believe) recognize these rights, but not "life, liberty, and the pursuit of happiness" more broadly. Nor are these rights "inalienable" - the core of a due process analysis is to balance the extent of the deprivation against the public need. I'm sorry I wasn't more clear on this earlier.

I want to see government stop fucking with every aspect of people's lives completely. And that is what would happen if we had a functional judiciary with the balls to hold our government to it's original, delegated powers. But we don't. We have a lazy judiciary that doesn't want to deal with any more paperwork than necessary.

First of all, the government doesn't fuck with every aspect of your life. If you think they're more intrusive than they ought to be, fine. And perhaps the judiciary isn't being "lazy" (which I frankly don't understand how you've come to believe, given how much all of them have had to do to get where they are), but are trying to interpret the law to the best of their understanding, and for the good of the country as they see it. Obviously they have a different view of what's good for

Re:Several Readers? What about NewYorkCountryLawye

[TheRealMindChild]

NewYorkCountryLawyer is a myth. He is a memory of an uncle's best friend's dog that pulled you from the Hoboken BBQ blaze of '84. You have manifested him in your mind as is the savior for all.

I hate to break the news, but we are all screwed.

Polarization comes from attacking one's rights

[jbn-o]

In previous copyright infringement cases in the US and abroad things just aren't that simple. American movie studios tried to argue that the VCR was helping people commit copyright infringement. Prior to The Pirate Bay's trial, The Pirate Bay's servers were stolen in what The Pirate Bay maintains was a joint effort of US government (at the behest of the American movie makers) and the Swedish government. This got Swedes riled, as I understand it, because there's no good reason why Swedes should have to satisfy American movie corporations in their copyright regime (should they choose to have a copyright regime at all). The RIAA is not to be trusted in court. Their history includes threatening the wrong people such as the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats. In 2007, the MPAA committed copyright infringement in their GNU/Linux distribution aimed at making university IT personnel spies on behalf of the MPAA. The MPAA famously illicitly copied the documentary "This Movie Not Yet Rated", which was critical of the MPAA on multiple grounds, and tried to pass their illegal copying as though it were acceptable in the process of issuing a rating for the movie.

People are polarized about this issue because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.

WOWzers

[Anonymous Coward]

I guess when it comes to big corporations laws do not apply to the little man....

Nesson Screwed His Client

[maz2331]

Pure and simple, Nesson has totally screwed over his client in a big way here. I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.

Unless he's just using the case to advance an agenda and will pay the judgement out of his own pocket, that is. In which case, fine, Tannembaum is just a proxy for Nesson to have standing to argue in court.

But if he chunks this case and leaves the defendant holding the bag, he's lower than even the lowest bottom-sucker.

Re:Nesson Screwed His Client

[sys.stdout.write]

This was discussed earlier, and in other news, I am smarter than Ray Beckerman.

I don't know that Nesson screwed his client, exactly, but he sure did waste a lot of time on this pedantic academic exercise with his students.

Re:Nesson Screwed His Client

[digitalgiblet]

I'm sure the students learned some valuable lessons, and isn't that what being a student is all about?

Now if the poor schmuck had hoped to avoid LOSING his case, perhaps a non-academic lawyer whose goal was winning the case, would have been a better choice.

Sounds like he's a GREAT professor and a LOUSY trial attorney.

Re:Nesson Screwed His Client

[Anonymous Coward]

So can he sue Nesson for malpractice? sounds like Joel is gonna be in need of alot of money very shortly....

Re:Nesson Screwed His Client

[Qrlx]

But if he chunks this case and leaves the defendant holding the bag, he's lower than even the lowest bottom-sucker.

+5 unintentionally hilarious John Edwards reference! http://www.wral.com/news/local/story/160341/

Re:Nesson Screwed His Client

[jimicus]

he's lower than even the lowest bottom-sucker.

<pedant>
It's "bottom feeder", and it refers to fish that feed near the bottom of the ocean. Can't get much physically lower than that.
</pedant>

Having said that, comparing a lawyer to someone who likes to suck on arseholes is an entertaining vision, and it's brightened my morning no end.

Re:Nesson Screwed His Client

[_LORAX_]

Worse yet his theory of damages in this case is weak at best, a crapshoot at worst, but has taken to censoring his blog when people bring up this hole in his argument.

Statutory damages can only be unconstitutional if congress did not have the authority to set them. If they had a legitimate purpose and gave enough guidance then they will withstand court scrutiny. He likes to conflate statutory with punitive; in the latter double digit awards over actual are *probably* unconstitutional.

New defense strategy

[russotto]

The opening arguments from the defense will now consist of defense counsel singing "I've Been Working on the Railroad".

A foolish defense

[Ammin]

Disproportionate statutory damages is the only reasonable defense; as others have pointed out, the RIAA gains ridiculous leverage because merely leaving a song upon eMule subjects you to thousands of dollars in phantom damages. Even if you ARE innocent, the risk/reward ratio allows the record mafia to shake you down simply because no one can risk the damages from losing.

Of course, the other obvious approach is to have Congress rewrite the statute to properly differentiate between a bootlegging operation with thousands of dollars in profit with counterfeit DVDs and some poor schmuck trying to get a few Mp3s.

Re:A foolish defense

[bhtooefr]

Actually, there's another possible defense, bypassing soap, ballot, and jury.

Ammo.

If you're facing millions of dollars of damages and can't afford to effectively defend yourself, your life is effectively ruined.

So, go out with a bang.

Re:A foolish defense

[Anonymous Coward]

Even if you ARE innocent, the risk/reward ratio allows the record mafia to shake you down simply because no one can risk the damages from losing.

Unless of course you ARE the mafia, in which case the risks are about even on both sides.

Re:A foolish defense

[Anonymous Coward]

That's right, because killing a whole bunch of people is the answer. If anything, that will validate the arguement made by the RIAA. If that happened, the next step would be for the RIAA to state file_sharing == gun_touting_terrorists

You, sir, are a complete idiot.

He is guilty, he admited, but...

[Anonymous Coward]

The problem is the punishment they are applying... if it's 1.920.000 USD then in my opinion it's way too much. I am not a lawyer but let's do some math:
- punishment -> 1 920 000 USD
- yearly income of this guy -> 60 000 USD (a supposition)
- working to pay the punishment 32 years!!!

so... to pay a 1 920 000 USD punishment in his case is an equivalent of being condemned for a working camp for 32 years... well not exactly working camp but I guess you get my point. So is it really fair? They should be defending this guy for a fair punishment and not this inflated bullshit RIAA is trying get him into.

My 2 cents.

Re:He is guilty, he admited, but...

[cpghost]

Have you actually factored in the interest rates on those $1.92M? Effectively, this sentence is equivalent to labor camp for life, not just 32 years.

Re:He is guilty, he admited, but...

[Nukenbar]

No, this sentence is equivalent to forced bankruptcy.

Re:He is guilty, he admited, but...

[Renraku]

Ahh, yes, the joys of dealing with civil cases.

In reality, you can ask for pretty much any amount you want. I could sprain my ankle on your property and ask for ten million. Sadly, this might not even get instantly thrown out of most courts. Ten million to me might be actual losses. Maybe I trained for the Olympics for my whole life and now can't do it because of the nature of the sprain. Now all of that training is useless, and you're responsible, because you owned a lawn.

Or at least, I'm trying to make you APPEAR responsible. Often, actual wages/funds/etc of the person being sued aren't even taken into account. That's why all of those uninsured motorists that hit someone and then don't pay up are so far in debt. Some ambulance chaser lawyer gets wind of the case and decides that $500,000 is a fair amount to sue someone when they ruin your $20,000 car. Not taking into account injuries, of course.

It's the same case here. I wouldn't be surprised if they pressed to get this fine 'inherited' to the next generation of Tenenbaum's family. It's not all about money, they might settle for a few thousand. Maybe ten thousand. Ten thousand is a great number when you can scare everyone else into paying it without actually going to court.

Bingo... we have a winner..

[SuperCharlie]

This is the only way to end it. Walk away. Just freakin walk the F away. You don't need the Jonas Brothers latest POS, you don't need Brittany Spears latest wtf.. If you do, pay the money and take your beatings and stop whining about stealing the dam stuff and getting caught.

There will never be a law change where you can steal someones work, distribute it to the world and not face repercussions unless it is specifically allowed by the owner.

Maybe a jillion dollars a song is too much to pay for the infraction..ok.. but none-the-less it will always be wrong and there is no other answer.

Get it into your head that as long as you consume this mess you feed these bastards and the system that supports it.

Re:Bingo... we have a winner..

[bhtooefr]

Whenever I buy music (which is very rarely,) I extensively research the artist, their label, and all to make sure not a single penny goes to the RIAA. For that matter, I don't even pirate RIAA stuff - a boycott is ineffective in a case like this unless the MARKET for the content is destroyed, not just the producers, and that requires reducing the amount of mindshare the content gets, which means not playing their content at all.

Re:Bingo... we have a winner..

[FishWithAHammer]

Go for it. Personally, I like some RIAA artists, and will purchase their material if it is worth my money, but if you're against the RIAA, the only ethical thing you can do is boycott everything. No piracy, no purchasing. Vote with your feet, and you can't have it both ways.

Good for him

[larry bagina]

Wikipedia lists 4 criteria in deciding fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

I know /. likes to think redistributing mp3s is fair use since it's lossy compression and people wouldn't have bought the song anyway, but that's a very tortured explanation and out of touch with reality.

Re:Good for him

[iamwahoo2]

"
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.
"

The factors for fair use "include" those four criteria. This states in plain English that their are more factors that should be considered beyond these four. At least, that is what the defense was arguing.

Re:Good for him

[jank1887]

very good.

"the effect of the use upon the potential market for or value of the copyrighted work" does not equate to "derives commercial profit or benefit from the copy". Increased availability can diminish demand, which affects the market. It could increase demand in often overclaimed cases of altruistic downloaders just sampling the songs to see if they want to buy it later. Or, bands as a whole could see some increased net demand due to the marketing aspect of wider dissemination of their music.

But, the most obvious and immediate effect is that of dilution in the market place reducing demand. There is no reliable, quantifiable aspect of that effect which leaves the respectable corporate stiffs free to make their own estimates and claims, as they do.

Re:Good for him

[Theaetetus]

The factors for fair use "include" those four criteria. This states in plain English that their are more factors that should be considered beyond these four. At least, that is what the defense was arguing.

Sure, but normal statutory construction (and logic) would dictate that any other factors be of similar scope. The defense's argument was that any usage for "private enjoyment" would be fair use. That's not a similar scope to those criteria. At best, "private enjoyment" would hinge on a subjective question of intent, while the 4 criteria are all objective considerations. As a subjective question, it would completely remove fair use as a legal finding and make it a factual finding - that would change congress' intent.

Jury Nullification

[Divide By Zero]

This guy's only hope now is jury nullification. If he can manage to sneak an RIAA hater into the jury box, and that hater wants the guy to walk badly enough to hang the jury, he can cause a mistrial. If the defendant hits the jackpot, that hater can turn the jury and actually acquit the guy.

The judges can't overrule the law, but the jury answers to no-one, and finds as it sees fit.

Re:Jury Nullification

[geminidomino]

This guy's only hope now is jury nullification. If he can manage to sneak an RIAA hater into the jury box, and that hater wants the guy to walk badly enough to hang the jury, he can cause a mistrial. If the defendant hits the jackpot, that hater can turn the jury and actually acquit the guy.

The judges can't overrule the law, but the jury answers to no-one, and finds as it sees fit.

My guess (IANAL) is that's what they were originally hoping for with the Fair Use defense, and why the judge won't even let the jury hear it.

Of course, even if they did, the judge would probably turn over the jury verdict and declare one of his own. They do that, it seems.

Re:Several Readers? What about NewYorkCountryLawye

[Hurricane78]

And here we have the core of the problem: People do not think. They believe. In "laws" (bought rules), in the **AA, in NYCL.

Please listen to this song once in a while, and start to think for yourself: Dan Le Sac vs. Scroobius Pip - Thou Shalt Always Kill

two problems

[shentino]

1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.

2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.

Either the judge is braindead, or he's setting the defense up for an appeal.

Re:two problems

[guruevi]

I think the RIAA wants it to go to Supreme Court and with the current and future set of judges being appointed by a government paid for by the MPAA & RIAA they will get a wide, sweeping, unconstitutional ruling to do whatever they want to people that even think about whistling a song.

Re:two problems

[shark72]

"1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense."

Why do you say that? What on earth do you think happens during the hearing phase?

If judges weren't allowed to throw out defenses before a case goes to jury trial, we'd all be doing a lot more jury duty.

Re:two problems

[FishWithAHammer]

1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.

It is, as a matter of court procedure, if he's going to rule it inapplicable anyway. That's why both parties must provide briefs of their arguments before arguments are made.

2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.

In many jurisdictions, this is not at all the case.

Either the judge is braindead, or he's setting the defense up for an appeal.

I know it's hard for Slashdot Aspie-wannabes to consider, but maybe he's smarter and more qualified than you are.

Re:two problems

[shentino]

Then it boils down to whether the applicability of fair use is a matter of fact or of law.

If there's a question of how much was shared or another disputed fact upon which the defense hinges, then it's an issue of fact reserved for the jury.

Please NYCL, save me from confusion.

Re:two problems

[Todd Knarr]

It's only a matter for the jury if a reasonable finder of fact could find either way. If there's only one conclusion a reasonable finder of fact could come to, then the judge is allowed to rule on it.

Now, in this case the activity in question involves the digital equivalent of setting up a stand on the street-corner and offering free copies of a copyrighted work to anybody who passes by and asks for it. Making copies for yourself of something you own, that's almost certainly fair use. Handing out one or two copies to a couple of friends, that may be fair use. Making copies for complete strangers, in wholesale quantities? Not anywhere near anything traditionally considered fair use. So the judge is on solid legal ground by saying "No reasonable jury could possibly conclude this was fair use, so I'm just going to take it off the table.".

The only way fair use could have been used as a defense is by arguing "I asked my local geek to set up something so I could get at my own music from my other computers. I didn't intend it to be publicly accessible, I didn't realize he'd made it publicly accessible, and I corrected the problem as soon as I became aware of it.". But at this point making that argument's impossible.

Re:two problems

[shentino]

Or he could just be stamping out any chance of jury nullification.

A supreme court case once positively affirmed the right of a jury to nullify the law.

Re:two problems

[williamhb]

1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.

Hang on ... IANAL, but I'm pretty sure the judge is one. If the judge has ruled this way, then until we see an appeal get up, I think we should assume the judge can make this ruling after all.

Re:two problems

[Theaetetus]

Then it boils down to whether the applicability of fair use is a matter of fact or of law.

If there's a question of how much was shared or another disputed fact upon which the defense hinges, then it's an issue of fact reserved for the jury.

Please NYCL, save me from confusion.

It's a matter of law. The 4 criteria listed in the fair use statute (17 USC 107) are all objective criteria, not subjective ones.

Re:two problems

[Theaetetus]

Or he could just be stamping out any chance of jury nullification.

A supreme court case once positively affirmed the right of a jury to nullify the law.

... in a criminal trial. There is no such thing as jury nullification in a civil trial. In fact, the judge can completely reverse the jury if she feels there is no way that a reasonable jury could have come to that verdict. The reason it exists in a criminal trial is that the right to trial by jury in criminal trials is protected by the constitution, the jury is not required to state their reason for finding not guilty, and the state can't bring the charges again (double jeopardy). But there's no right to a trial by jury in a civil trial.

Re:two problems

[shentino]

It doesn't matter. The defense counsel is probably too incompetent to protest any legal error anyway.

Which is really what boils my blood about our legal system. Even blatant foul-ups are set in stone if nobody complains immediately.

It miscarries justice and forces lawyers to make motions simply to keep them from being estopped later.

Re:two problems

[shark72]

The fundamental misunderstanding here might be that this is a district court. Fair use has been tried as a defense in every P2P service or tracker trial, going back to the original Napster. Each time it's been made clear that fair use doesn't apply. I don't know how more clear a reading of the law is required here. Keep in mind that even the EFF isn't backing up Nesson on this one. But either way, district courts don't set precedent. If you still believe that there's a glimmer of a hope that fair use can apply, then that's what the appeals process is for. It's kicked up to a higher court which has more flexibility in setting precedent.

I know you believe the judge to be "brain dead" but it's important to understand that she's no friend of the record companies. She and Nesson go back a long way (which is one reason, I suspect, that she went out of her way to give examples of how fair use might apply to a file sharing case). She's chastised the record companies in the past for "bankrupting" defendants, and her husband is the legal director of the Massachusetts ACLU, which has gone up against the record labels in the past. Nesson could not have found a more favorable judge.

"Please NYCL, save me from confusion."

Anybody with an understanding of the facts can explain it to you, and I believe that a few folks have already tried. If you're looking specifically to NYCL to tell you what you want to hear, be careful -- he's a smart guy and I have tremendous respect for what he's doing, but he has a very clear agenda here.

I also disagree with your assertion that the defense is incompetent. I think I understand why he's taking this unorthodox approach; that's perhaps left for another discussion.

Re:two problems

[shentino]

maybe I got this one mixed up with the guy who failed to bring in an expert witness.

Re:two problems

[Todd Knarr]

See Amendment 7: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.".

Interestingly enough, while a jury's decision as to the facts can't be questioned in civil cases, no such language is present in Amendment 6 dealing with criminal cases.

Re:Several Readers? What about NewYorkCountryLawye

[Ungrounded Lightning]

About half a page down. B-)

... unable ...

[Joseph_Daniel_Zukige]

I think you figured out how they got to her.

Threatened to have her performance examined.

So she is now unable to think independently.

costs? No.

[Joseph_Daniel_Zukige]

If you want to take about non-provable costs of lost sales, you'd better start also talking about the just-as-tangible gratis advertising.

One of the problems here is that it's hard to advertise the product without giving part of it away.

But it is probably the civil thing to do to refrain from advertising for an artist who repeatedly asks you (through his or her "Artists' Association") not to advertise.

He?

[Joseph_Daniel_Zukige]

Or did you mean that in the gender-neutral sense?

Fail sharing is the cause of the bad economy?

[Joseph_Daniel_Zukige]

That's what you're saying?

This whole economic downturn has been caused by file sharing?

(Actually, that is not as far-fetched an idea as it seems, but pursuing that idea to the end in no way vindicates the Artists' Associations.)

appeal

[Joseph_Daniel_Zukige]

One might suppose the judge is just speeding the process up for appeal, so that the case can be moved up to a court with competence on the Constitutionality.

Re:appeal

[Qrlx]

Does the Judge's dismissal of a Fair Use defense mean the defendants can present that argument again at appeal? I feel like I really should know that...

And, while we're at it, no free advertising.

[Joseph_Daniel_Zukige]

Should be needless to say, but while we're boycotting the RIAA, we should quit giving them free advertising, too.

Take our seeds down.

Leave the seeds up for the artists who tell us they don't mind.

The stupid and the lazy

[westlake]

The RIAA's "objection" came in the form of a new pool quietly installed in the judge's backyard, more than likely...

If I may be permitted to misquote Isaac Asimov:

Conspiracy theories are the last refuge of the incompetent.

It really isn't that hard to understand:

Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.

Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.

The geek is cheap and he feeds on the thrill - and that is what lands him in court.

Netflix lists 100,000 DVDs and 2,000 Blu-Ray discs.

For about $15 a month he could build a substantial personal collection which would be of interest to no one so long as it remains within his home network.

Mind you, that's still a five fingered discount, and not Fair Use.

Re:The stupid and the lazy

[delt0r]

I can't get netflix in my country. DVDs that are sold sometimes don't even include English despite the fact that most of population does speak the language, and its the original language of the movie. They often don't have the subtitles for the local launages either. I guess the Zones weren't fine grained enough.

To top that all off the DVDs often have root kits (yes it is still done and its not sony) and other non standard DVD "features" to prevent "copying". They often don't work in DVD players. Once it didn't even work in mplayer!

Now the real fun begins when I try and get my money back.

You are right. Its not a right. But then again they don't make it easy to be honest.

Oh yea fair use in the country I live in means I am allowed to "crack" a dvd or whatever to watch/listen on whatever hardware/software I want. As in that is a right i do have. Despite efforts to take that away.

Re:The stupid and the lazy

[pehrs]

Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.

I hate this argument, especially from people on slashdot who supposedely should know better. It's the same kind of broken logic that is used to motivate huge fines. Each user in a p2p network will (on average) upload the same amount of data as he or she downloads. That's because a p2p system doesn't magically create or destroy bytes. So if you want to put a monetary value on the actions of a p2p user you will find that the actual damage is something along the line of the value of the software he has downloaded. The participation in the p2p net does not significantly increate the damage he can do. It doesn't matter if it's 2 members in the net or 15000.

Re:The stupid and the lazy

[westlake]

I can't get netflix in my country.

Do you have a postal service?

If you do, you have viable model for starting your own small business.

They often don't have the subtitles for the local launages either. I guess the Zones weren't fine grained enough.

There are eight DVD Region codes and countries. and 136 DVD language codes.
 

Re:The stupid and the lazy

[westlake]

The participation in the p2p net does not significantly increate the damage he can do. It doesn't matter if it's 2 members in the net or 15000.

Then why am I seeing 113 sources for what is unmistakably the same file?

Re:The stupid and the lazy

[mcgrew]

If I may be permitted to misquote Isaac Asimov: Conspiracy theories are the last refuge of the incompetent.

That's one hell of a misquote, and is entirely incorrect. Of course many conspiracy theories are bogus, but there are more than enough to put the lie to your epigram. I guess you're not old enough (or aware enough) to remember Watergate? Or Enron? Or George Ryan? Not that I believe this particular conspiracy theory, but if this was an elected judge rather than an appointed one, it may be possible.

The correct Asimov quote has Salvor Hardin saying "violence is the last refuge of the incompetent". Lying, twisted facts, and ignoring reality must come in as next to last.

If copyright law wasn't so badly bent and twisted, there would be few pirates.

Re:The stupid and the lazy

[Drakkenmensch]

Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.

And this somehow magically allows the RIAA to sue 12 year old girls for hundreds of thousands of dollars?

Re:The stupid and the lazy

[delt0r]

So why sell a DVD with *one* subtitle language and *one* spoken language, in a country that has at least 3 common languages, and is next door to 4+ other countries with different langs? We are not allowed to get a dvd 50min drive away now? Somewhere else in the EU needs to be "incompatible" with other parts?

The excuse that its takes up too much room does not work when considering subtitles.

As for starting my own netflix start up.. will you lend me 1Million?

Re:The stupid and the lazy

[mdwh2]

I agree that a fair use defence sounds dubious, but he didn't "upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets."

And the point is that should be up to the jury to decide. What's the point of "trial by jury" if a judge is allowed to make up his mind on the case, before the trial has even started?!

Re:The stupid and the lazy

[shadwstalkr]

If copyright law wasn't so badly bent and twisted, there would be few pirates.

No, there would still be many pirates. Piracy isn't some grand statement against the state of copyright law, it's just a bunch of people who want to be entertained for free.

Re:The stupid and the lazy

[westlake]

Not that I believe this particular conspiracy theory, but if this was an elected judge rather than an appointed one, it may be possible.

A note on impeachment in the federal system:

Since 1797 the House of Representatives has impeached sixteen federal officials. These include two presidents, a cabinet member, a senator, a justice of the Supreme Court, and eleven federal judges. Of those, the Senate has convicted and removed seven, all of them judges. Not included in this list are the office holders who have resigned rather than face impeachment, most notably, President Richard M. Nixon. Of thirty-five attempts at impeachment, only nine have come to trial. Because it cripples Congress with a lengthy trial, impeachment is infrequent. Many officials, seeing the writing on the wall, resign rather than face the ignominy of a public trial. A Short History of Impeachment

Impeachments of Federal Judges

The first - and I think the only - federal judge to be convicted of bribery was District Judge Robert F. Collins in 1991. Federal judge is first ever convicted of taking bribe

Re:The stupid and the lazy

[Anonymous Coward]

It really isn't that hard to understand

I'm glad we can agree on something. The current media market and copyright law are anti-consumer, and a substantial benefit will be seen from reform. In the mean time $1.92M judgments for minor infringement of copyright is just another black eye for the media companies.

I'm assuming you have studied economics? The P2P networks represent a market in which media is virtually free and the catalog outstrips what is available in any store (iTMS included). We can't expect the media companies to compete with it directly, but any economist with a smidgen of sense knows that the media companies have exactly one choice: they must change their distribution model to make content available on the internet at a lower price than they are, and they must do so in a way that makes the market open for consumers.

They can sue everyone they like, but there are not enough lawyers in the world (never thought I'd see myself typing that) to handle the caseload it would take to actually make P2P cost-prohibitive to the point people will stop doing it. This is exactly the same problem as the war on drugs. You're not going to get rid of demand. More pain isn't going to stop the purchasers from participating in the market. You can shape the market, but you cannot stop it.

Re:The stupid and the lazy

[mcgrew]

Piracy isn't some grand statement against the state of copyright law, it's just a bunch of people who want to be entertained for free.

SOME piracy, yes, but Inot the majority. Every study not financed by the major record labels say otherwise, that "pirates" spend more money on music than anyone else.

The majority of them just want to keep from being ripped off; they'll download it to see if it's good, buy it if it's good and delete it if it isn't. It's no grand statement against copyright, but it isn't people wanting "free stuff" either. The "all pirates want free stuff" is simply untrue RIAA propaganda, and the studies back up the fact that the RIAA propaganda that you seem to have swallowed is completely false.

The fact is, nobody has ever gone broke from having their copyrights infringed, but many artists have gone broke from obscurity. Read the forward to Cory Doctorow's Little Brother for a much better explanation of how that works. It's available for free on his web site in many different formats, and despite the fact that he gives it away for free it still made the New York Times best seller list.

Re:The stupid and the lazy

[Anonymous Coward]

Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.
Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.

Your right it doesn't. Just like the people running these companies aren't entitled to break corporate tax laws, personal income tax laws, and wage and hiring practice laws just to name a few. Funny, but that happens ever day. So when when I hear the pious proselytizing from the poor media industry on how the big bad pirates are putting them out of business I just want to vomit from the flood hypocrisy that they exude.

I'm reminded of a quote from Lawrence Garfield in the movie 'Other People's Money' - "You can change all the laws you want. You can't stop the game. I'll still be here. I adapt."

Re:The stupid and the lazy

[sbeckstead]

Oh, car analogy coming on. If the speeding laws weren't so there, my 70 in a 35 wouldn't have been illegal. Copyright law is pretty straight forward actually. Your interpretation of it may in fact be twisted and bent but it is pretty clear. The copyright laws should have exceptions that they don't, and they shouldn't last that long but beyond that they are pretty right to the point.

What exactly is twisted about, if I own the copyright I'm the one who gets to copy it and distribute it.

Re:The stupid and the lazy

[mcgrew]

The geek is cheap and he feeds on the thrill

Studies that have been funded by others than the RIAA show that music pirates spend substantially more money on music than non-pirates.

I'm actually pro-copyright, FOSS wouldn't exist without it. But the way the laws are written beg for them to be broken and seem to me to be unconstitutional. The constitution says "authors and inventors", there's no wording there allowing the monopoly to be able to be transferred. And as it is to "promote the useful arts and sciences" why is Jimi Hendrix's music still covered by copyright?

Re:The stupid and the lazy

[jmcvetta]

The geek is cheap and he feeds on the thrill - and that is what lands him in court.

Now wait -- is the sharer poor (I think that's what you meant by "cheap"), or is he sharing for the "thrill" of doing so? Sure, sharing a copy of a song is more convenient, affordable, and morally commendable than paying money to Recording Industry cabal for that same copy. But does anyone out there actually find it "thrilling"?

Re:The stupid and the lazy

[xDraveNx]

I can't get netflix in my country.

Do you have a postal service?

If you do, you have viable model for starting your own small business.

Wow, you really come off like a dick. Do you have any idea how much a movie costs when used as a rental? I assure you it is not the 20ish$ you're paying at your local best buy. The idea of renting to rip being better then download is asinine. Lastly, if you want to be taken seriously don't use thinly veiled insults when making your points.

Re:The stupid and the lazy

[amoeba1911]

I am 100% against piracy. Piracy takes a bite out of a legitimate industry's profits. It is a despicable act and must be stopped. That having been said, what is piracy?

Piracy is:
1. Profiting by hijacking ships and their cargo.
2. Profiting by fucking the copyright law.

So when you see an ass hijack an oil tanker off the coast of Somalia, that's a pirate. When you see an ass selling bootleg DVD's in front of the movie theater on the opening day of the movie, that's a pirate.

Piracy is not:
1. Some 21 year old college student who barely has enough money for books, downloading some songs for free.
2. Some benevolent chap sharing his collection with people mentioned in 1.

The anti-piracy junkies can scream and yell until they're blue in the face about how the teenager downloading $1.9M worth of stuff for free is costing them $1.9M, it doesn't make it true. There isn't $1.9M to be spent on things in the first place, nor any amount close to it. No piracy even took place. There was no profiteering from the sharing. There was no exchange of money nor any intentions of it. That is NOT piracy nor anything close to it.

The sickest part of piracy is corporations violating the copyright law for profit: that is piracy at its worst. When Bono and Disney fucked over the copyright to extend it to "forever minus a day" for their own profit, they hijacked the legal system and violated the copyright law for their own profit. I see that as the most heinous form of piracy. Disney, who built an empire re-branding public domain destroyed public domain.

my 2 cents

Re:The stupid and the lazy

[Anonymous Coward]

The geek in question pays $40/mo for his broadband access. So, it is natural to him to think that $15 of pseudo-netflix fee is already included in his ISP fee and thus he can grab whatever digital context he has available for download from internet.

The sensible thing to do would be for an ISP to offer $15+ upgrade to basic $40/mo, share the profits with netflix and keep everybody happy and out of the court room.

Re:The stupid and the lazy

[NoMaster]

The excuse that its takes up too much room does not work when considering subtitles.

Actually, it kinda does.

DVD subtitles aren't highly-compressible text, and they're not MPEG / JPEG compressed video or images either.

They're stored as run-length encoded (RLE) bitmaps and, as such, can take up quite a bit more room than you may expect. On top of that, IIRC there's a limit in the DVD spec on how many private streams can be included in the container (.VOB), and a practical limit on the bitrate available off the disc (total of all video (including alternate angles, etc) + all audio + all private streams must be less than ~10.8mbps (with video alone being limited to a max of ~9.8mbps)).

Not this again

[westlake]

So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars

But if WalMart was the publisher, do you think they would forgive the retail value of the copies you distributed to 15,000 of your closest friends on the P2P nets? More likely they would attempt to extract every penny of the judgment from you if it took from now until the day the last trump blows.

Re:Not this again

[Opportunist]

15,000 copies of a full CD (about 300MB, current CDs hardly have 30 minutes of music on them) come up to about 4.5 terabyte of traffic.

I envy you for your pipe.

In other words, when you pull numbers out of your ass, ponder for a moment before you use numbers that are beyond sanity. But it shows something else: How does someone cause the alleged damage? If you participate in P2P filesharing, you're allegedly giving the song to thousands and thousands of people. My question would be HOW? I wish I had the pipe the RIAA dreams up in those cases. To share 24 songs, each 5mb in size a thousand times creates 120 GB of traffic. Provided that you sent that song completely 1000 times, which you allegedly do when you get sued. If you manage to fill your average 256kbit upstream pipe (which is pretty much the norm where I live, if you have broadband at all) to the brim, 24/7, accomplishing this would take about 2 MONTHS. But in those 2 months you do not do anything but upload songs.

Robin Hood, Rood Hood riding through the glen

[westlake]

People are polarized because the law is in conflict with a belief many (or most) people are taught from childhood: sharing is good.

Raiding the neighbor's apple orchard to bake a pie for the church social isn't sharing. It's theft.

Re:Robin Hood, Rood Hood riding through the glen

[WillDraven]

This is more like your neighbor giving you an apple, you then planting the seeds, and using those apples to bake a pie, and then being sued by the farmer who sold your friend the apple.

Re:Robin Hood, Rood Hood riding through the glen

[Opportunist]

More like buying an apple pie but being told by the apple pie vendor that I can't give the local kids a piece because they should buy some pie too. I should eat what I want and throw the rest away so he can sell to me AND them.

Re:Robin Hood, Rood Hood riding through the glen

[NeMon'ess]

More like buying a magical container of soup that refills itself and the vendor can't find any non-refilling containers to sell you that don't leak, fall apart, or spoil the taste of the soup. The vendor pleads and threatens you not to give away your soup because if you do then the vendor will go out of business or have fewer new flavors. Then you and everyone else will have fewer flavors to enjoy.

Re:Robin Hood, Rood Hood riding through the glen

[Opportunist]

Considering that all his crap tastes the same anyway, I wouldn't call him going out of biz a bad thing. Maybe some mom'n'pop shop could fill in once he and his starbuck'esque ubiquitousness doesn't keep them from trying.

Re:Robin Hood, Rood Hood riding through the glen

[jmcvetta]

Raiding the neighbor's apple orchard to bake a pie for the church social isn't sharing. It's theft.

In this case, the orchard's no longer has access to the stolen apples, and thus has suffered a material loss. Do the RIAA no longer have copies of music that has been shared? If so, they should just download a copy!

Sony is who put fair usage into precedence!

[P0ltergeist333]

Is no-one else staggered by the irony and hypocrisy of Sony using fair usage against Universal, and then it being disallowed when they are the bully? This judge is an idiot, plain and simple.

*Beautiful* phrasing of music business model

[cheros]

I must say this is about the best summary of quite a few business changes since the Internet came along:

"What happens when you're selling bottled water in the desert and it starts to rain." - Nesson.

Absolutely awesome metaphor of losing a monopoly..

Re:*Beautiful* phrasing of music business model

[williamhb]

I must say this is about the best summary of quite a few business changes since the Internet came along: "What happens when you're selling bottled water in the desert and it starts to rain." - Nesson.

You brand it with a French name and double the price.

Re:Several Readers? What about NewYorkCountryLawye

[religious freak]

Must be taking a vacation in NewYorkCity???

A good overview of the case

[jginspace]

A very good overview, written just before the judge's ruling regarding the fair use defence, from yesterday's Guardian.

The defendant's mother is a lawyer and she drafted the response to Prof Nesson's initial offer with the opening line, "Dear Professor Godsend".

It seems the defendant offered to settle for $500 (actually sending the money order) and later on for $5,250 - but the RIAA declined, holding out for $10,500.

So the argument is...

[Lord Bitman]

"No, I won't even hear your arguments, because if you were right, that would mean that the other side's entire case, and indeed business model in general, doesn't make sense."

Well, yeah, that's the point.

Re:So the argument is...

[_LORAX_]

But that is not the Judges decision to make, it's congress.

What the fuck then ?

[unity100]

didnt congress create fair use ? how can you let copyright swallow it, to prevent it fro 'swallowing' copyright ?

seems like another sold out judge to me. oh, american legal non-system.

What about Happy Birthday?

[Anonymous Coward]

> How can this judge make this ruling, knowing that she has probably infringed on copyright at some point in her life and got away with it, and if by some small chance, she never infringed on copyright, then surely someone close to her has.

Well, she might not download music online, but what do you want to be she has sung Happy Birthday at some point in her life?

Yes, it's still copyrighted in the USA.

Shooting yourself in the foot

[westlake]

I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.

Two guys that will have the judge reaching for some Southern Comfort;

The law professor who thinks he would have made a hotshot trial attorney.

The defendant who also thinks he would have made a hotshot trial attorney.

But the cowards get to live.

[zippthorne]

The blood of patriots is far too precious to spend watering the earth over tyrants. We need it to bootstrap more patriots. The people who stay out of the fight are the ones who easily accept tyranny..

The fight against tyranny provides selection pressure favoring exactly the kind of people who will accept tyranny.

Re:But the cowards get to live.

[Opportunist]

Depends on who wins.

Re: Why am I seeing 113 sources...?

[llogiq]

Because 113 people "near" you (for some definition of "near") have already copied that file. Still, this does not mean that you get 113 copies of the file.

So here's what I don't understand

[metallurge]

It seems as though folks are up in arms about the damages awarded in these filesharing cases. People argue that $x,000 per song is patently ridiculous as far as damages, when you can just go download the song for about $1.

Well, OK, fine. But the true damages in filesharing are when you take that $1 song and make it available for x,000 or x,000,000 people on the Internet to download. Essentially, you have then become an alternate publisher, and if you and people like you were allowed to continue, copyright would simply become meaningless.

So, yes, it is reasonable to put a stop to such behavior. If it can be proven in court, it is reasonable to expect that someone who becomes their own publisher of someone else's copyrighted works would be liable for some big damages. Just because this is so trivially easy in the digital age does not make it any more right.

Which does not mean I support draconian enforcement strategies. This is a civil matter, not a criminal one.

It pains me to write this.

Re:So here's what I don't understand

[Whorhay]

Just because it's possible for thousands of other people to copy the files you are sharing doesn't mean it's likely to happen. Even if you are sharing a file that is very popular. Have you ever used a P2P service and kept track of your download and upload ratio? Getting to even a 1:1 ratio is difficult. The likely hood that any random individual that the **AA drags into court has actually uploaded as much content as they have downloaded or have shared is pretty low.

It's like this

[maudin8]

The RIAA are lumping everyone in the same category. Should someone who downloads and pirates for profit be a concern to the RIAA? Maybe, as their only argument. What do they really hope to gain from someone who downloads to hear a song once and then never listen to it again or downloads one or two songs for personal enjoyment and doesn't want to waste money on the rest of the album? The music companies make money from the younger MTV pop crowd spending money from their allowance and from established music icons. I know I bought Dark Side of the Moon. The people they "catch" are not who they should be pursuing if any, and are taking them to court because they need some results to justify their existence.

Treble Damages

[twmcneil]

"Best Of Queen" That's a 3 cd set mate.

Horrible lawyering to make a point

[sampson7]

Folks -- you need to understand, this defense was designed to fail at the trial court level. Under the American court system, the trial court judge determines the facts of what happens (sometimes aided by a jury) and then applies established law to those facts. The parties can then appeal to the higher appellate courts if they think the judge erred in applying the law, or, as in this case, arguing that the law should be changed.

The type of fair use argument presented here was doomed to failure at the trial court level. Any lawyer would recognize this. However, now that the judge has made a decision of law that the fair use defense does not apply, the defendant can appeal to the trial court. The problem with celebrity/academic lawyers is that they aren't really representing their client -- they are trying to score political points and make ground-breaking precedent. Hopefully their client realized what he/she was signing up for.

This cause Needs some Martyrs

[pcfixup4ua]

The majority of sheep that vote in the people we have in our government will encourage this stuff to go on until they see innocent people suffer excessively (die, spend a long time in prison for downloading a song) Some enterprising prosecutor needs to start going after downloaders and try to put in as many in jail as possible.

Yes, before the arguments start?

[sampson7]

Yes, the judge ruled as a matter of law that the fair use defense is not applicable in this case. Fair use is what lawyers call an "affirmative defense." The defendants have to convince the judge that, as a matter of law, they are entitled to present an affirmative defense to the finder of fact (either the jury, or if there is no jury, the judge). If the judge finds that the defendant has not met their burden of proving their affirmative defense, then the defendant is not permitted to present evidence in support of that defense.

Entirely standard practice and sets the stage for an appeal to the higher courts. In the American system, appeals as to a judge's finding regarding the law is what is called a de novo; meaning that the appeals court will review anew the lower court judge's legal findings. By contrast, the standard of review for findings of fact is the "highly deferential" standard. In practice, this means that it is much easier to prevail on an appeal regarding a judge's finding of law then it is to say that the judge/jury made an incorrect finding of fact. The upshot is that the defendant now has a nice clean legal issue (to wit, whether fair use can apply in cases like this) to present to the appeals court. Very nice from a law professor's point of view, though not a strategy most trial attorneys would endorse.

Yes, IAAL, but I am not your lawyer -- and there are an infinite number of permutations on this theme that justify(?) my billing rate. Consult one of your own for more info.

Re:Yes, before the arguments start?

[Hatta]

If the judge finds that the defendant has not met their burden of proving their affirmative defense, then the defendant is not permitted to present evidence in support of that defense.

Shouldn't it be up to the jury to decide whether the defense has met that burden? If they can't meet that burden, then they will fail in front of the jury. The judge should keep his nose out of it, unless he thinks he knows better than the jury, at which case I have to ask why we have juries at all?

Oh right, we have juries to legitimize our kangaroo court system. If we actually let juries hear real arguments, we'd run a risk of them deciding an outcome that the powers that be don't like.

Entirely standard practice

And still thoroughly repugnant.

Dear mods

[shentino]

I'm an idiot.

Please stop modding up the above comment.

all the more reason to practice civil disobedience

[perigee369]

All the more reason to practice what amounts to "civil disobedience"... Yet another biased judge that ignores previous precedents regarding fair use. Big surprise huh? Maybe if enough of us just do it anyway, eventually they can't sue all of us, eh?

Well, that makes sense...

[Spiffy]

Essentially, the judge is saying he won't allow a defense because the defendant would obviously win!

Re:Well, that makes sense...

[shark72]

Kinda. It's a bit like if the defense presented the argument that copyright infringement should be legal on Tuesdays, and that his client only fired up Kazaa on Tuesdays. The judge would not allow that defense, for the same two reasons: if the defense were accepted by the jury, then the defendant would obviously win, and because it's silly.

Sharing...

[gillbates]

Even as a child, I knew:

1. Me sharing something of mine with yourself and others is good.
2. You sharing something of mine with yourself and others is bad.
3. Or, more succinctly, you don't take what belongs to someone else without permission.

The problem with the filesharers is they are confusing sharing with taking. Sharing is when you give to others what rightfully belongs to you. Taking is when you give to yourself (and possibly others) what rightfully belongs to someone else, against their wishes. Lending your CDs to your friends is much different than giving the *entire world* a copy of the music for *free*. Your friend expects to return your CD and the favor someday. The rest of the world does not.

As long as people put significant amount of work and labor into the creative arts, they will expect to receive something in return from society for their efforts. Contrary to what some may believe, providing a living for an artist *is* in the best interest of society, because the financial incentive means a greater number of creative people can quit their day jobs and work full time creating music, movies, art, etc... Whether that occurs through patronage or copyright is largely a matter of the details. However, given Americans' aversion to greater taxes (to support the artists, of course), it isn't likely that copyright is going to change soon.

cavalry department, not calvary

[smellsofbikes]

> calvary-needed-no-questions-asked dept.

Calvary was a hill in Jerusalem where the Romans killed people. Cavalry is a bunch of angry gun-toting army dudes on horses, that ride in at the last moment to save the hero from a bad situation. I think you need the cavalry.

Re:cavalry department, not calvary

[shark72]

I think Tennenbaum's being set up to be figuratively nailed to the cross here.

Re:all the more reason to practice civil disobedie

[shark72]

The precedent is hugely against the defendant here in the application of the fair use defense. Every P2P service trial has had fair use come up, and they've been smacked down each time. Precedent is crystal clear here.

I'm not sure where you get your belief that the judge is biased. Remember, she's the one who yelled at the record companies for bankrupting defendants and warned them to stop. Her husband is the legal director for the Mass ACLU, also no friend of the record companies. Nesson has a judge who is very sympathetic to the cause.

Better analogy...

[Estanislao Mart�nez]

No, it's more like waiting until a cabbie gets out of his car to get some coffee, then "borrowing" his car and using it to give people free rides. You return the car at the end, and then you tell him that he didn't lose any money, because none of those people would have paid for a cab ride. Which is of course true, because you were giving cab rides away for free!

This thread must have broken some record.

[Estanislao Mart�nez]

This has got to be about the most disingenious thread I've ever read about file sharing. File-sharing is a technology that's primarily used to obtain commercially available work without paying for it; in practice, the "sharing" part (where downloaders also distribute files to other people) is just about achieving economies of scale. It's done because it makes it possible for the downloader to obtain more files and faster.

In the fantasy world you're painting here, however, this is all inverted so that file-sharing is some sort of supreme form of altruism. Come on, give us a break.

Re:This thread must have broken some record.

[Anonymous Coward]

Come on, you have to admit it was a good argument. I don't condone or participate in filesharing, but it is clear that the artificial nature of copyright protection does sometimes come in conflict with other ideals of good behaviour.

Key quote...

[Civil_Disobedient]

Busy now so I won't bother posting links.

Key quote from www.fija.org link:

At the time the Constitution was written, the definition of the term "jury" referred to a group of citizens empowered to judge both the law and the evidence in the case before it. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford. The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision." (emphasis added) "...you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".

Re:Several Readers? What about NewYorkCountryLawye

[jmcvetta]

Please listen to this song once in a while, and start to think for yourself: Dan Le Sac vs. Scroobius Pip - Thou Shalt Always Kill

That's the best song I've heard all month. Thanks!

Sorry, bad arguments

[ZmeiGorynych]

Erm, first, if an average person only downloads a handful of songs, then an average person only uploads a couple of songs - simple math.

Second, 'treble damages' would be fine, ten thousand-fold damages are not.

Third, if the current damages agree with your idea of what the rights of the copyright holder should be, your ideas about that are very different from mine and a lot of other people. It's not that 'I'm looking at copyright wrong', it's that I think the current extent and strength of copyright protection are wrong, by about an order of magnitude.

Thankfully, now there are pirate parties - I joined the one in my country.