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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.
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.
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.
Democrat delenda est
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?
"I assumed blithely that there were no elves out there in the darkness"
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.
Bobb9000 - raised by the wolves,
Oxford education as phrased by the wolves.
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.
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. ^^
Any sufficiently advanced intelligence is indistinguishable from stupidity.
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.