Listen to the RIAA's Appeal In Jammie Thomas Case

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Listen to the RIAA's Appeal In Jammie Thomas Case

Posted by timothy on Thursday June 14, 2012 @02:11AM from the call-your-bookie-with-your-winner dept.

NewYorkCountryLawyer writes "The RIAA doesn't really like free mp3 files floating around but here's one you can access legally — the audio file of the June 12, 2012 oral argument of the RIAA's appeal in Capitol Records v. Jammie Thomas-Rasset. At issue in this case are (a) the RIAA's 'making available' theory and (b) the constitutionality of large statutory damages awards for download of an mp3 song file. The lower court rejected the making available theory, and reduced the jury's verdict to what the judge considered the maximum possible award of $2250 per file. I'm predicting the Court will affirm. After listening to the oral argument, what do you think?"

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What do we think? We don't know! by L4t3r4lu5 · 2012-06-14 02:19 · Score: 5, Insightful

A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.

You're the lawyer; You tell us!

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1. Re:What do we think? We don't know! by Anonymous Coward · 2012-06-14 02:36 · Score: 5, Insightful
  
  Its one more nail in the coffin of an outdated model that serves as an example of a few industries that have failed miserably to embrace new technology and god forbid adapt to changing circumstances, and instead are abusing the courts to keep an outdated methodology in place, massively stifling innovation in the process.
2. Re:What do we think? We don't know! by QuasiSteve · 2012-06-14 02:42 · Score: 4, Interesting
  
  And on the other hand is hyperbole and backwards Pirate accounting, where a song which was once played on the radio back in the 40's could conceivably have been recorded - legally, for free - by their grandfather onto a wire recorder and passed down through the generations having been transferred to more modern media and replaced with higher quality recordings (after all, one should be entitled to the same piece of music even if it's not the exact same recording) along the way ending with them.
  At which point they made it available to 1,000 'friends' whose grandfathers could also just as easily have recorded it back in the 40's and thus, logically, have every right to that same piece of music.
  It also does not only extend as far back as the 40's - any newly released song is played on radio, released on youtube, etc. so the arguments work just as well for those.
  Which, coincidentally, makes the monetary worth of that music $0, thus there being no monetary damages and no basis for a court case at all.
  Moreover, by exposing people to this music they share, those people may be more inclined to listen to more of that music and actually buy them at iTunes, buy the physical albums, go to concerts and purchase t-shirts and other swag.
  Really, by some Pirates' logic, the RIAA should be paying them.
  I don't really see either extreme being particularly realistic. Unfortunately, the two 'sides' are not likely to come to an agreement any time soon.
3. Re:What do we think? We don't know! by Theaetetus · 2012-06-14 02:48 · Score: 4, Interesting
  
  A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.
  You're the lawyer; You tell us!
  Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?
  That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
  And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.
  *Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands. ;)
4. Re:What do we think? We don't know! by NewYorkCountryLawyer · 2012-06-14 03:06 · Score: 5, Funny
  
  You're the lawyer; You tell us!
  I've never before experienced such humility on Slashdot. You must be new here.
  
  --
  Ray Beckerman +5 Insightful
5. Re:What do we think? We don't know! by QuasiSteve · 2012-06-14 03:06 · Score: 2
  
  Bottled water is a fairly poor example, though.
  Bottled water is highly popular in the U.S., as far as I've been able to tell, because of a few reasons:
  1. It tastes better. Tap water in the U.S. is often chlorinated (yuck) or mixed with lord knows what but it makes me wonder if it's even suitable to be showering in.
  2. It's usually available chilled. Water from any random tap won't be chilled.
  3. It comes in a bottle. Yeah, you could carry your own bottle around everywhere, but how inconvenient is that? Having to hold on to it even though it's empty, having to rinse it out, etc. etc.
  4. It's ubiquitously available. Even an electronics store will sell bottled water near the registers for impulse buyers.
  5. It's fairly cheap. Not as cheap as tap water, of course, but certainly a lot cheaper than a fruit juice.
  Now, I don't know if analogies to the music can even be properly construed based on those, but let's give it a shot anyway...
  1. How would they make the music 'taste better' than what is available from any download site? Higher bitrate? Would still get pirated. Surround sound? Still digital, still pirated. There's nothing they can do to the actual music itself to make it magically be sold more and pirated less. Even if they came out with raw instrument tracks at 192kHz/96bit and it would weigh in at 500MB per song, it wouldn't matter.. those who would want it would still pirate it, and for those who think 500MB is too much, they'll just grab back to the 3MB mp3 which, to them, doesn't really 'taste worse'.
  2. Same arguments as under 1., really.
  3. They could 'package' music, but then.. they already do that, don't they? You've got albums with sleeves, covers, booklets, etc. Generally, though, people have stopped caring about those. Those that mildly care about it are even catered to - the sleeves, covers and booklets are included in the album download as high quality JPEGs or better. There's precious few people who really want the physical product.
  4. They could start selling music through some generic interface that anybody can embed into their site and get a teensy kickback from it.. but torrent sites, limewire, etc. are - in the world of the internet - just as ubiquitous. There isn't any issue with physical proximity to be considered.
  5. Lowering the price beyond what it currently is ($0.49 - $1.99) will do little. It's not like there's a whole lot of people out there saying "Oh, I would buy this song - but $0.99 is just too much. If it were only $0.25, I'd buy it right now!". The average person could probably pick up more than that off the street every year.. and not do it because they money on the street is dirty.. who knows what all is on there, ew.
  Yes, they have to find different ways for their larger profits, I agree. And they do.. always have.. concerts, swag, all that. But I disagree with the notion that there's no intrinsic 'worth' to music and should thus be free to distribute by those with no license to do so. That's why, in an older comment to a different story, I suggest that copyright be dismissed entirely because it's untenable, and instead there be more strict enforcement of distribution rights.
6. Re:What do we think? We don't know! by Kjella · 2012-06-14 03:13 · Score: 2
  
  That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
  Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position. The upload she provided is cancelled out by the one she consumed and in net there is only one extra copy which she could have been bought for $1. If there's 100 people in a swarm there's 100 copies and each person caused 1/100th of that which is 1 copy, only in RIAA math did 100 people each cause 100 copies leading to 10000 infringments.
  
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7. Re:What do we think? We don't know! by Theaetetus · 2012-06-14 03:16 · Score: 2
  
  Though most don't provide anything like as many copies as a store.
  Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.
  
  the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.
  As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.
  Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw in logic or practice, that's for Congress to decide, not the courts. The courts can only weigh in if it's unconstitutional.
8. Re:What do we think? We don't know! by Anonymous Coward · 2012-06-14 03:19 · Score: 3, Interesting
  
  What massive innovation has the RIAA stifled?
  I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee. It will come with album artwork and maybe even lyrics. My phone can hold many thousands of these songs, play them back in any order either by playlists I've arranged or based on metadata embedded in the song.
  Also available are services that, in return for blitting ads to my screen, will create playlists based on some data about me: other songs I like; types of music I like; the mood I'm in; what I'm doing; etc etc, and transmit the songs on that playlist for my listening.
  Available on these services is more music than has ever been available in any record store that ever existed on the planet. The cost to get music on them is lower than it has ever been. If an artist chooses he can make music with his home computer and peddle the resulting files himself over the internet. He can make them available through any number of storefronts that will take far less of his profits than any music label ever. Or he can sign up with a traditional label and let them do all that work.
  My ability to select music a la carte is greater than it has ever been. If I buy a 'single' and decide later that I want the whole album, the money I've already paid for the single can be credited toward my album purchase. If an album is coming out in a week I can get the first single now and, a week from now, the album will show up on my phone without my having to do anything, and the above credit scenario applies.
  What more is it you want?
9. Re:What do we think? We don't know! by Anonymous Coward · 2012-06-14 03:26 · Score: 5, Insightful
  
  you think the RIAA made music-at-our-finger-tips possible?
  you are a schmuck.
  you know what made it possible? consumers.
  consumers that said "fuck your model"
  the music industry only begrudgingly made changes.
  it's taken decades.
  we don't need the RIAA or the industry, they need us.
10. Re:What do we think? We don't know! by MobileTatsu-NJG · 2012-06-14 03:33 · Score: 2, Insightful
  
  I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee.
  Do you know why you can do that? I'll give you a hint, it ain't cos of the RIAA.
  
  --
  
  "I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
11. Re:What do we think? We don't know! by Sique · 2012-06-14 03:44 · Score: 2
  
  So why didn't we had that already in 1994 for instance? When amazon.com opened and all the other online shops started? Why did it take until 2003? The technology to compress a music stream was there, MPEG-1 Audio Layer 3 was standardized in 1992. How to download a file was wellknown in 1994, and how to handle payments too (see amazon.com).
  So where does the 9 years of postponing come from? People not being able to code online shops?
  
  --
  .sig: Sique *sigh*
12. Re:What do we think? We don't know! by gman003 · 2012-06-14 03:49 · Score: 5, Interesting
  
  If I were a judge, this is what I would do.
  Go out, find what the commonly available price of purchase is for all the infringed songs. Don't bother trying to find "the best deal" or doing some big, exhaustive research on average prices. Just go out to Wal-Mart or go on iTunes, look up all the songs, see what it would cost.
  Move the decimal point over one place. If they stole one album ($14.99), their liability is $149.90. If they stole $100 worth of music, they owe $1000. If they're a repeat offender, move it over an additional place (ie. if this you've been in court for it before, that one album is now $1,499).
  If the defendant actively distributed it (not just "seeded their torrent", but actually posted it on new sites or made their own torrent or whatever), they're liable for both side's legal fees. Otherwise, each pays their own.
  Same applies to any other Intellectual Property. Steal a $60 video game? Pay them $600. Steal a $20 movie? Pay $200.
  The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate. And the legal fees will make the MAFIAA go after the actual "distributors", not people who just download a few episodes of whatever TV show is popular right now. Economically, the only ones worth it are the distributors (because as long as you win, you have no costs), and the massive steal-every-song-made-in-the-past-century pirates who still rack up millions in damages, not the "I'm gonna give this song a listen before I buy it" crowd or the "piracy is *still* easier than buying" crowd.
13. Re:What do we think? We don't know! by jxander · 2012-06-14 03:53 · Score: 4, Interesting
  
  Oh but they CAN bottle music better.
  When I go to iTunes/Amazon/etc and download some old Black Sabbath jams, I don't run the risk of having them mislabeled as "Ozzy." They also come with the metadata tags fully filled out, names are all spelled correctly, album art is accurate, and everything else that a music loving person like myself would enjoy. I can download entire albums at the click of a button and have them cataloged, named correctly and set to play in the order originally intended without having to worry if the file of Track 3 contains the first few second of Track 4, making for a messy exchange when listening.
  Are these minor things? Well, yeah. They're absolutely minor little nit-picks that probably wouldn't bother the majority of music listeners, when compared with the allure of "free." But then again, bottled water tasting a bit better is a minor thing too, and it certainly hasn't stopped that from catching on. And for me, the conveniences I've mentioned here are WORTH $0.99 per song. I'd rather spend the dollar than go through and fix all that crap myself (because I will be fixing all that crap if I torrent)
  
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14. Re:What do we think? We don't know! by MitchDev · 2012-06-14 03:57 · Score: 5, Insightful
  
  I'd like to see an "Intellectual Property Tax" passed on the rights holders, I bet the songs aren't valued by the holders at 150,000 per track anymore at that point....
15. Re:What do we think? We don't know! by Bengie · 2012-06-14 04:02 · Score: 4, Insightful
  
  I came across this analogy.. paraphrased.
  
  Claiming losses on sales that never happened in the first place is like this.
  
  Say littering gets you a $100 fine. Say if you spent all day littering in front of a police station, you could rack up $5000 in fines. This means if you don't litter, it's like saving $5000/day, which means people who don't litter at all are "saving" more than $1.8mil/year. They're all rich!
16. Re:What do we think? We don't know! by MitchDev · 2012-06-14 04:15 · Score: 4, Insightful
  
  It's "cheaper" and less legally risky to go to the store and shoplift the CD or game than it is to Download it...
17. Re:What do we think? We don't know! by Nerdfest · 2012-06-14 04:22 · Score: 3, Informative
  
  In 1994 it wasn't feasible because of space restrictions on computers and players, and to a degree, download speeds.
18. Re:What do we think? We don't know! by rastoboy29 · 2012-06-14 04:26 · Score: 2
  
  What is unrealistic about a string of bytes having a value of $0? Do you have trouble with computer? ;-)
  
  --
  expandfairuse.org
19. Re:What do we think? We don't know! by aaarrrgggh · 2012-06-14 04:27 · Score: 5, Insightful
  
  Hate to jump on this war, but wow... you are so wrong! The historical stifling is hopefully something that no reasonable person can deny-- the attacks that the RIAA made on Mix-Rip-Burn, the adherence to the album model long after it was dead, and killing sites that made it possible for people to discover music and become music consumers again.
  Even today, the RIAA doesn't like the model that is out there-- they really want to push a limited catalog of super-hits, and generate ongoing revenue from their back catalog that has been purchased over and over again based solely on the need to media shift. They also are responsible in a large part for the complexity in international music sales, the challenges of internet radio, Pandora, and the like. They serve to promote formulaic music that is most likely to be successful.
  While I can't speak for everyone here, the real problem isn't just the RIAA, but the MPAA and whatever the comparable association is for television. Copyright extension to its current level is one of the biggest problems, but their push for additional revenue streams is even worse. All three associations need to regroup (RIAA has come the farthest) and re-align themselves to the brave new world.
  (And yes, I realize the RIAA does not do anything, they are simply a trade group for the labels. The transgressions of the labels and RIAA are much more easily lumped under a single umbrella.)
20. Re:What do we think? We don't know! by Theaetetus · 2012-06-14 04:38 · Score: 2
  
  So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
  No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.
  Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
  
  Hence the "making available = distribution" issue, which was dropped.
  Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.
  
  I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.
  Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it consumed downloading, by definition. And we know a leecher exists - MediaSentry.
21. Re:What do we think? We don't know! by bipbop · 2012-06-14 04:41 · Score: 3, Insightful
  
  And CPU. Remember when we graduated from MP2 to MP3? I needed a new computer just to play them!
22. Re:What do we think? We don't know! by Rasperin · 2012-06-14 04:46 · Score: 4, Insightful
  
  Not only all of the above, but the copyright laws make it hard to create a valid small business with new ideas and concepts. You have to fight and essentially be ventured by the RIAA or MPAA to start a media serving company. They crush any new ideas that aren't restriction on media access, and if they can't crush them they fight tooth and nail to allow them. See iTunes when it was originally released, the RIAA fought it hard to stop apple. Pandora ended up in court several times with the RIAA before they allowed it to go through. And this is just the RIAA, let's not even start with the MPAA and their content restrictions. How they've destroyed many online rental companies, forcing companies like Hulu (which is owned by the MPAA) to check if you have cable (coming soon to a computer near you!).
  
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23. Re:What do we think? We don't know! by Culture20 · 2012-06-14 04:56 · Score: 2
  
  But it was there in 1995 and 1996. Plus by 1997, the general public was into the web enough that website URLs were regularly in TV commercials. That's still six years away from 2003. There was a concerted effort on the part of the RIAA to stifle electronic media because it would cut into their tape/CD sales. Even when iTunes started up, there were draconian price and DRM rules from the RIAA that stifled innovation and generated ill-will. Apple had to drag them kicking and screaming to their senses.
24. Re:What do we think? We don't know! by ThePhilips · 2012-06-14 04:58 · Score: 2, Insightful
  
  You are sort'a right. But not really.
  I still have around somewhere the first CD-Rs from around 1996-1998 filled with the MP3s of the music which was literally impossible to buy at the times. CD-R were rather expensive - but it was worth it. Cheap harddrives were already 2-4GB in size. For some of my friends, fans of death metal, the warez channels (P2P wasn't yet widespread enough) were pretty much only way to acquire some of the music (at good quality). Some of the world music and classical performances picked at the times I still can't find on CDs/better to this date.
  And download speeds were not that bad either: you just queue stuff up in the evening and voila - next day morning it's finished! If something larger - leave it for the weekend. In a way, the Internet was faster in the times: I never had to wait for download to finish. :)
  
  --
  All hope abandon ye who enter here.
25. Re:What do we think? We don't know! by AmiMoJo · 2012-06-14 04:58 · Score: 3, Interesting
  
  The amount isn't based on what they "stole", it is based on what they supplied to others. The RIAA argues that if you upload a song on a P2P network it can potentially go to thousands of people. They want to be paid for all of those potential "thefts", hence the massive multiplier.
  It seems odd they can be awarded for losses they can't prove.
  
  --
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  SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
26. Re:What do we think? We don't know! by QuasiSteve · 2012-06-14 04:58 · Score: 2
  
  Personally I don't have trouble with computers - though I do have trouble understanding how that even factors into this discussion.
  The unrealistic aspect of "a string of bytes having a value of $0" lies in what that string of bytes constitutes.
  Presume for a moment that the string of bytes is, in fact, the original studio recording before it goes to any CD pressing outfit. (ignoring the CD mastering people, etc. for a moment here).
  The value of that string of bytes is then rather high. You can say that "well anybody can copy it, so it's $0" - but not anybody can copy it, because there's only two data carriers that have it that are under fairly strict access controls.
  You could argue that "it's still $0 because maybe nobody will actually buy it", but then we're getting into the realm of philosophy more than the everyday reality.
  If you want an analogy: I kidnap your family and by paying me a certain amount of money, whatever you feel your family is worth when expressed in the currency of choice, I will e-mail you the GPS coordinates of where you can find them, completely unharmed albeit rather shocked I'm sure.
  What is of value of you there is the location. You don't even care that they're GPS coordinates. You also probably couldn't care less if I'd send it to you carved in stone and sent by a flock of carrier pigeons. But the fact is that I'm e-mailing them to you, and that means bytes. Suddenly, those bytes become very, very precious to you indeed.
  Obviously MP3s on the internet have no such scarcity. The everyday reality is that songs are sold for, say $0.99. Of course those same songs are also pirated for, typically, $0. The person selling it thus believes the value to be $0.99 (minus fees), the person pirating it believes the value to be $0. Which one is philosophically / technically / morally right vs which one is legally right can often be opposing views which gets rather clouded with the intricacies of the internet.
27. Re:What do we think? We don't know! by Shagg · 2012-06-14 05:08 · Score: 3, Insightful
  
  Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
  What about contributory infringement? If the only proof of an upload was induced by an agent working on behalf of the copyright owner, is that really infringement?
  
  --
  Unix is user friendly, it's just selective about who its friends are.
28. Re:What do we think? We don't know! by jedidiah · 2012-06-14 05:20 · Score: 4, Informative
  
  > What massive innovation has the RIAA stifled?
  The very one you gush over. RIAA fought it tooth and nail. Even when they relented a tiny bit, they still installed Apple as a new monopoly.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
29. Re:What do we think? We don't know! by Prune · 2012-06-14 05:21 · Score: 2
  
  What a bunch of bull. Bottled water is several orders of magnitude more expensive than tap water, has in some studies been frequently detected to contain MORE contaminants than tap water (including bacteria), and causes an enormous increase of pollution not just because of the plastic bottles, but because most of it has to be transported significant distance.
  
  --
  "Politicians and diapers must be changed often, and for the same reason."
30. Re:What do we think? We don't know! by spire3661 · 2012-06-14 05:21 · Score: 2
  
  Mp3.com sends its warmest regards .... from the grave. You are a fucking moron if you think that IP hasnt held back technological progress. Every smartphone should have an 'airdrop' like functionality by now. The reason we dont is copyright cartels.
  
  --
  Good-bye
31. Re:What do we think? We don't know! by jedidiah · 2012-06-14 05:22 · Score: 2
  
  There's only one problem with that argument: Napster.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
32. Re:What do we think? We don't know! by icebike · 2012-06-14 05:40 · Score: 4, Insightful
  
  You must be new here.
  Moderating is not a job. Its a randomly handed out optional task to normal users.
  Unfortunately a significant number of these volunteer moderators use it as a Disagree/Agree scale rather than
  pay any attention to the content or reasoning in the post.
  As to your arrogance of commenting on the IQ of an entire community based on the graffiti of the few, I'm not sure it does much to further the discussion, but it probably allows you to thump your chest a bit and feel all smug. Congratulations: You've "Won the Internet".
  
  --
  Sig Battery depleted. Reverting to safe mode.
33. Re:What do we think? We don't know! by psydeshow · 2012-06-14 06:11 · Score: 2
  
  What massive innovation has the RIAA stifled?
  Think about how easy it is to share photos and albums with your friends and family.
  Now why isn't it just as easy to share music? Try to share a music track or a playlist from your phone.
  Generally speaking, text, images, and video (copyrighted or not) are easily shareable via social software. But audio, not so much.
34. Re:What do we think? We don't know! by cHiphead · 2012-06-14 07:09 · Score: 3, Informative
  
  They tried to sue mp3 players out of existence. Rio anyone? Remember MP3.com? Remember their digital locker attempt and RIAA claiming the world would end over it? Who DIDN'T they sue? Even Apple was a target but managed to force it down their throats with iTunes.
  
  --
  
  This is my sig. There are many like it, but this one is mine.
35. Re:What do we think? We don't know! by rahvin112 · 2012-06-14 07:39 · Score: 2
  
  You listed a lot of benefits of bottled water.
  Did you know that bottled water is 95% of the time bottled tap water? (there are very few brands that are genuine untreated spring water, most that claim spring water are less than 10% spring water or the spring being counted is feeding the tap water) Often from the scummiest and oldest drinking system in the city that serves the industrial area where the water was bottled is the water in your bottled water. The most popular and cheapest brands are bottled tap water processed at your local coca cola or Pepsi bottling facility. Oh sure they might run it through a sediment filter and they might ozoneate the water before bottling but it's a crap shoot on that and generally none of what they do takes the residual chlorine out or any of the impurities present in the tap water (all the arsenic, iron, lead and other contaminants are still there).
  I can understand buying bottled water for convenience, and I can even understand buying it occasionally for taste (typically all they do is add mineral content that's lacking in some non-ground water based tap water systems). But anyone that buys this shit because they think it's better than the stuff in their tap needs to stick to smoking rock rather than thinking. Bottled water is the biggest fucking scam in the world, they are taking your tap water, putting it in the bottle and selling to back to you at a higher price than gasoline and milk, and in fact usually higher than what the soda costs bottled in the same facility with the same water and bottles.
  It's kinda funny actually how the soda industry turned around and convinced the public to buy the same bottled drinks from them without the CO2, sugar and flavorings at a higher price and it's nothing more than bottled tap water.
  Years ago the US had the best water in the world. During the 50's we built and put in operation state of the art water treatment that made most US tap water the envy of the world for cleanliness of water and dramatically reduced natural soluble containments. The EPA standards for common contaminants is so low in many instances that tap water is cleaner than any water source in the state. Slowly this quality of water is being degraded, not by contamination or such, but because the populace has been unwilling to maintain and upgrade the treatment systems. They'd rather pay 40000% the price and have coca cola bottle up the same tap water rather than pay less than a penny a gallon to have the water system improved. Personally I blame the Baby Boomers and their incredibly selfish outlook on life. Most cities could bond out with a price increase in the penny per gallon range and build state of the art treatment plants and at the same time upgrade the piping infrastructure but these small water rate increases are invariably shot down by the public because they can't afford to pay $5 extra month when they are spending $100 a month on buying bottled tap water.
36. Re:What do we think? We don't know! by jedidiah · 2012-06-14 09:51 · Score: 2
  
  > How is a service that started in 1999 relevant to 1994?
  That which was debatable in 1994 was undeniable in 1999.
  The market was ready.
  The technology was ready.
  The industry fought against the future tooth and nail just like they always have. They are an entrenched oligopoly. They have no self-interest in innovating. They guard the gates and take a large vig.
  Many of us could claim that the market and technology were ready earlier. Rather than being mired in an argument about who has the better memory, a bold, clear, and undeniable example is far more efficient.
  Most of my MP3 collection predates Napster.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
37. Re:What do we think? We don't know! by WarmBoota · 2012-06-14 15:59 · Score: 2
  
  Losing my mods to reply. Like everything to do with media, the reason was not because it was technically impossible, but legally impossible. Do you recall the Diamond Rio? Mp3.com? Few folks do. They were the first commercial mp3 player and most popular site for mp3 music and they were pretty incredible at the time. Diamond had to fend off lawsuits after releasing the device. Mp3.com was sued into oblivion and now there's Google Music, Amazon Cloud, and Apple's copycat offering. Apple had considerable capital and in a post-Napster world there were more execs interested in a legitimate model for downloading music. THAT's why the RIAA is killing innovation. Jeez, it's not like this is ancient history....
  
  --
  90% of everything is crap. Also, crap is relative.
when a dinosaur dies by circletimessquare · 2012-06-14 02:31 · Score: 5, Informative

it's tail thrashes around a lot, and does a lot of damage
it's still going to be extinct very soon nevertheless
you can't foist a business model from a dead era on us
well you can try, and drain all of your coffers in the process, thereby speeding up your demise
but economic reality has a way of being economic reality despite your protestations
they call things like the Internet "disruptive technology" for a reason
consider yourself permanently disrupted, media conglomerates

--
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
1. Re:when a dinosaur dies by Anonymous Coward · 2012-06-14 02:46 · Score: 2, Funny
  
  Burma Shave
2. Re:when a dinosaur dies by Sulphur · 2012-06-14 03:12 · Score: 2
  
  He flagellates the neighborhood
  Smoothly to the ground.
  Burma Shave!
3. Re:when a dinosaur dies by bbbaldie · 2012-06-14 04:37 · Score: 2
  
  The funny thing is that for years the RIAA was that cool organization that presented artists with those gold and platinum records. I bought quite a few records back in those days, but felt a twinge of guilt when I would record them onto cassettes to spare wear and tear on the record. The guilt increased a bit if I recorded friends' albums, although I tended to eventually spring for my own copy of the good ones, just so i could get a more pristine cassette recording.
  That was before they destroyed Napster, and proceeded on to suing folks of all shapes, sizes, colors, and ages for, basically, copying albums to cassettes.
  Now, I buy my music from Russian websites. The RIAA gets zilch. I get mp3's which are of a high enough quality that I highly prize them, and keep them redundantly backed up.
  I also share with friends, via sneakernet.
  If an artist blows me away (e.g. Bonnie Bramlett, of Delaney and Bonnie), and are clearly not already fabulously wealthy (e.g. Mick Jagger), I actually will track down their agent and send them a modest check from my S corporation. It's a tax-deductable contribution to someone who has earned their pay.
  Otherwise, i might visit an artist's website and score some bling.
  You see, money passes from my hands to a music seller. It passes from my hands directly to the artist. Or it passes from my hands to an enterprise connected with the artist that pays nothing to the RIAA.
  You can say downloaders are destroying the traditional business model for music, RIAA, but the reals criminal here is staring back at you in the mirror. You have managed to anger me (and how many millions of others) enough to work out a fair and square way to purchase guilt-free music.
Re:In before lawyers wannabe opinions by Anonymous Coward · 2012-06-14 02:36 · Score: 2, Funny

He accidentally the predictions.
Thomas' argument shoots herself in the foot by Theaetetus · 2012-06-14 02:37 · Score: 4, Insightful

For better or for worse, Thomas waived the "making available = distribution" argument, and argued only the Constitutionality of statutory damages in a case with an argument for no actual damages... But by basically stipulating to distribution, she no longer can make the argument that this is just about a single download, the "noncommercial individual file sharing at issue in this case."
Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.
Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.
How about this one by Anonymous Coward · 2012-06-14 02:51 · Score: 4, Insightful

Artificial scarcity is morally wrong and economically harmful.
Business models that involve data should not be dependent on artificial scarcity.
We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).
1. Re:How about this one by Chrisq · 2012-06-14 03:07 · Score: 3, Funny
  
  Artificial scarcity is morally wrong and economically harmful.
  That's what I said to a girl who turned out not to be on the game
2. Re:How about this one by icebike · 2012-06-14 05:17 · Score: 3, Interesting
  
  Artificial scarcity is morally wrong and economically harmful.
  Business models that involve data should not be dependent on artificial scarcity.
  We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).
  You have to ask yourself if the scarcity is in fact artificial.
  There is only one Lady Gaga, and she can't be everywhere at once, and she is therefore by definition scarce.
  Recording and mass marketing has made her un-scarce. She chose this route. She did so in order to maximize her
  profit, with the expectation that she might make some money. Not an unreasonable expectation.
  When there were records (vinyl), artists and labels could press a short run, label them a collector's edition if they wanted, and
  controlled the number in production. Same for books. That too was a artificial scarcity of sorts.
  So was the 1937 Bugatti Type 57S Atalante Coupe, 17 made. They could have made any number.
  Others could have copied the car, or the books or the records. But we, as a society, gave that right
  to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not
  germane, we did it, enshrined it in law, and it is what it is.
  Digital music / ebooks / videos removed all capability for the artist to control the number of copies, and allows
  anyone, at will, to create any number of copies.
  You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
  wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.
  Ford could have copied Bugatti. But the barriers to entry were high enough (an automotive assembly plant) to prevent that.
  Someone could have pressed a copy of the Beach Boys albums, or any best selling book. Again you had to have the
  expensive tools and you would risk getting caught with a warehouse full of counterfeit goods.
  The computer removes all of that, and gives any 12 year old the ability to make perfect copies at zero cost.
  Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?
  Will 3D printing do the same for physical objects?
  The concept of artificial scarcity is, itself, artificial: man made.
  
  --
  Sig Battery depleted. Reverting to safe mode.
3. Re:How about this one by bws111 · 2012-06-14 08:53 · Score: 2
  
  This is entirely false. The argument for copyright is (and always has been) that creators get to control their works. Sometimes that means selling copies. Sometimes that means saying 'you can not use my music in your commercial'. Sometimes that means saying 'you may not distribute binaries of this software without distributing the source'. Sometimes it means saying 'this is my gift to the world, do what you want with it'.
  What does the ease of infringement have to do with anything? There are lots of things that are incredibly easy to do, yet society has decided that doing them is bad so we make laws about them. It is incredibly easy to dump poisonous chemicals into the water supply - does that mean that laws saying don't do that are obsolete? It is incredibly easy to mow down a bunch of people with your car, therefore murder laws are obsolete? It is incredibly easy to throw garbage out your car window - are littering laws obsolete?
If that stands... by MikeRT · 2012-06-14 02:57 · Score: 4, Interesting

It'll just make a bigger mockery of our court precedents. If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines, then how can the Supreme Court possibly justify things like saying that it is cruel and unusual to use the death penalty on someone who is a serial child molester (they struck down Louisiana's law which provided for execution of repeat offenders say it was "uncivilized").
Oh wait, this is the same federal judiciary that only recently discovered that the 2nd amendment was part of the Bill of Rights and was being excluded from incorporation under the 14th. In another 150 years, they might discover that the DMCA's statutory damages are unconscionable and hypocritical as well.
Re:The courts already ruled on the making availabl by Theaetetus · 2012-06-14 03:01 · Score: 2

And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution. That issue is on appeal, and Thomas has decided not to argue it, instead saying that the Appeals court should refuse to consider it, and decide that it's moot in view of her waiver.
The problem is, it's still an issue as it relates to the Constitutionality of damages. So now, the judges have one side arguing that it should be distribution, and the other side providing no argument whatsoever. That's not a great strategy.
100s of downloads are improbable by bzipitidoo · 2012-06-14 03:35 · Score: 4, Interesting

One number that no one seems to have argued about much is the number of downloads that could have come from one user's computer. This is the basis for the entire idea of multiplying the damages to levels we all know are ludicrous. The RIAA insists hundreds of people could have downloaded from Jammie Thomas. Although that's possible, it's highly improbable. The most likely number of downloads is 1 per file. That's one, not hundreds or thousands. The court ought to use that number to compute damages.
Why only 1? For the same reasons that Ponzi schemes do not work. The network quickly becomes saturated. Suppose people can give out copies at more or less the same rate, to anyone else. And once a copy is received, the recipient can quickly turn around and share it. (BitTorrent is even better than that, starting the sharing of parts of a copy before a recipient has received the entire file.) Each generation, the number of people who could have a copy doubles. By the time a person is giving out a copy for the 20th time, 1 million people could have a copy. By the 33rd time, everyone in the world could have it. Even if everyone in the world wants a copy, only one person, the originator, could have given out as many as 33 copies, and only the first recipient could have given out as many as 32. Just 8000 people could have given out 20 copies, and just 1 of every 2000 people could have given out 10 copies. Half the people will have given out zero copies, because by the time they got it, there was no one left who still didn't have a copy of their own. The average number of copies of 1 file that a person gives out is 1.

--
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
Wait... what? by Okian+Warrior · 2012-06-14 03:41 · Score: 3, Funny

When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage
That statement got me really curious.
Apropos of nothing, just how is it that you come to know what happens when a dinosaur dies?
"Holistic"? Give me a break by NewYorkCountryLawyer · 2012-06-14 05:53 · Score: 2

This is, I guess, the lighter side of the Law.

My favorite moment in the argument was when the judge asked the RIAA's lawyer (Paul Clement) whether he agreed that the statute requires, for distribution, that there be a sale or other transfer of ownership, or a license, rental, or lending. And Clement asked the judge not to rely on the words of the statute, but to read the statute 'holistically'.

I never knew the RIAA was so holistic. Maybe next they'll be wearing beads and tie-dyed t-shirts.

--
Ray Beckerman +5 Insightful
Re:But eh.. by NewYorkCountryLawyer · 2012-06-14 05:59 · Score: 2

Who owns the copyright to the audio?
Me.

That'll be 99 cents please. You can make payment to my Dwolla account.

1. Tell everybody on Slashdot about a free mp3 file involving an RIAA case
2. ???????????
3. Profit!

--
Ray Beckerman +5 Insightful
Re:Because you're not quite evil enough by NewYorkCountryLawyer · 2012-06-14 06:02 · Score: 3, Insightful

In actuality, Jamie Thomas made thousands of songs available. The RIAA only picked a small subset for trial. .... Wonder why they only tried to go for a mere 30 or so?
Think it could it have anything to do with the fact that there's no such thing as "making available" in US copyright law?

--
Ray Beckerman +5 Insightful
Re:The courts already ruled on the making availabl by NewYorkCountryLawyer · 2012-06-14 06:06 · Score: 2

And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution.

Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.

--
Ray Beckerman +5 Insightful
Transcript of first 10 mins by QuasiSteve · 2012-06-14 06:17 · Score: 2

NOTE: This is not the official transcript (if one does exist - I couldn't find it - please do link to it and mod this down), and is only of roughly the first 10 minutes. The rest is also very interesting but I suggest downloading the mp3 and playing it back at twice the speed (keep the pitch) because it. is. long. And I have no idea who the judges are, I think I heard 3 voices, so there you go.
Also... TIL: Typing remittitur is remarkably easy, and Firefox believes it's not a word.
00:00) RIAA
Good morning, your honors, and may it please the court, with the court's permission, I'd like to reserve 5 minutes for rebuttal.
Your honors, this appeal presents 2 issues of considerable importance to copyright law.
Whether the law protects a copyright holder's ability to make a work available to the public, and the circumstances in which a statutory damages award - that's within the range set by Congress - nonetheless may violate the due process clause.
Now appeliate attempts to block the court's review of the 1st issue by abandoning aspects of the relief that she procured below.
But, with all due respect, she continues to take the position that the district court was correct, and appelate review simply doesn't work that way.
A party's not free to pick and choose which parts of the district court's judgment they're gonna defend because they find other issues in the case more [ui]
00:50) Judge
It's rather complicated here were there are the 3 judgments.
00:54) RIAA
It is, your honor, I think that's right.
But in any event, I think that almost - sort of - underscores the equities here which is, you know, it's not just a matter of procuring a positive legal ruling and then abandoning on appeal, but it had the consequence of requiring 2 additional trials.
Because the 'making available' error was the district's court sole ground for not going forward and entering judgment on the 1st verdict.
I mean, in light of other observations of the district court I think it's pretty clear that the district court would have found that judgment constitutionally excessive.
01:26) Judge
Leaving the queston of damages aside for the moment, would it make sense for us to go back to that 1st judgment of the district court?
01:36) RIAA
I do believe it would, your honor, because I do think that, certainly for right on the 'making available' argument, then I think that almost automatically the right answer would be to go back to the 1st judgment.
01:37) Judge 2
What if you're wrong on that and the other side says "We're willing to let it go" anyway?
01:52) RIAA
Well, I think then, your honor, I don't know that that's a box that's available for them to check, I mean.. one thing.. [interrupted]
01:48) Judge 2
You think we should go to the 3rd verdict if we agree with the district court on setting aside the 1st verdict based on the 'make available'.
02:09) RIAA
I think if you considered the making available issue on the merits and disagreed with us - I mean I'd like to be able to talk you out of that - but if you reach the 'making available' issue in disagre.. [interrupted]
02;19) Judge 2
[unintellible] more a procedural issue right now..
02:22) RIAA
Right.
02:22) Judge 2
I thought, you say "If we go to the merits, yeah, then it follows that we would go to the 3rd verdict", but I'm asking whether we should go to the merits.
02:30) RIAA
I think we should, your honor.
In fact, I guess I would say under these circumstances, I don't think - with all due respect - you have a choice.
I think it would be one thing... [interrupted]
02:38) Judge 2
[ui] they default, aren't they essentially defaulting on the appeal?
02:43) RIAA
Well, you know, I don't think they are, your honor, in the sense that they aren't confessing error.
So I think they're putting this court in a very awkward position by simply, sort of, refusing