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?

[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?

[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?

[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?

[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?

[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?

[citizenr]

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

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?

[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?

[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?

[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?

[houghi]

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

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

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

[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

[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

[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

[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

[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

[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

[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.

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.

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.

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

[NeutronCowboy]

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

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.

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...

[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...

[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.

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:Several Readers? What about NewYorkCountryLawye

[hedwards]

He's here. He just modded you funny.

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...

[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...

[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: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.

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.

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.

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.

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

[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.

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

[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?

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.

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.