[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]
It's not clear that the question actually meant 'are you admitting legal liability to the charges listed in the complaint.' It could also have meant 'are you admitting that you were liable (i.e. responsible) for the downloading of the files?' That is, "were you the one that clicked 'download?' or did the files get on your computer some other way" This is where a complete transcript would be of use. Context is everything.
Beyond that, the question was 'are you admitting liability?' not 'are you liable?' One can admit liability without rendering a legal opinion. It is very much a factual question, and it is separate from whether he is actually liable. For example, he could be lying or he could be mistaken. Of course, he had no reason to lie and there is a lot of corroborating evidence to suggest that he was in fact liable. Consequently, the judge took all of that evidence, including his admission, into account. The evidence was so overwhelming, in fact, that no rational jury could find the defendant not liable, hence the directed verdict.
As I mentioned elsewhere, Nesson's strategy has always been to give up on liability and argue that the damages are either unconstitutional or otherwise impermissible. Those arguments are for the appellate courts, however, not the trial.
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it.
The linked article doesn't give a complete transcript of the questions and answers, so I can't speak to whether the question was 'totally improper,' but as Ray Beckerman (aka NewYorkCountryLawyer) should know, it was the job of Mr. Nesson, not the judge, to object to improper questions. Furthermore, Mr. Tenenbaum was almost certainly deposed prior to trial, and Mr. Nesson would know what questions were likely to come up.
Finally, the offending question is presumably "Are you admitting liability for all 30 sound recordings?" Under FRE 704(a), an opinion as to an ultimate issue to be decided by the trier of fact is admissible (with the exception given in FRE 704(b), which does not apply here).
Lay opinion evidence is limited by FRE 701, which requires that the opinion "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Crucially, the question was not "Are you liable?" it was "are you admitting liability?" The former might possibly be objectionable, the latter is almost certainly not. In any case, Mr. Nesson did not object and so the point is largely moot.
The only reasons to disregard Mr. Tenenbaum's admission would be if the judge believed he was either lying or mistaken. He had no reason to lie, and since the other evidence makes a strong case that he was in fact liable, his admission fits with that.
In any event, Mr. Nesson's strategy has always been to admit liability but argue that the damages are unconstitutional or otherwise impermissible. He has been very clear about this in his public discussion of this and related cases.
Finally, I'll just add that the right against self-incrimination applies only to criminal cases and has no application here.
Recalls are always optional for end users. Thus they can't be used in the case of licensing problems since the books wouldn't get returned.
I did not use the recall in the sense of a voluntary product recall. I used it in the sense of an injunction requiring the seller to recover, turn over, or destroy the illegally sold copies of the copyrighted material.
In that case Amazon would need to provide the correct owner of the books with some agreed upon monetary settlement.
In fact Amazon refunded the purchase price of the book (99 cents, I believe). And that is exactly the remedy that the buyer is limited to: a recovery of the purchase price under the implied or explicit warranty that Amazon had a right to sell what it sold.
Nothing in the EULA gives amazon the right to REMOVE data from YOUR Kindle. This fact has nothing to do with their right to license the book in the first place.
This is not really about the EULA. It's about copyright law, which does not recognize a bona fide purchaser defense. The buyers did not have a right to what they received. Amazon broke the law by infringing the copyright holder's exclusive right to distribute copies to the public. It then attempted to rectify that error by removing the infringing copies from the Kindles. It did so at the behest of the rights holder. The rights holder has every right to demand removal of the infringing copies, whether by agreement with the seller or by court order. Amazon probably just saw the writing on the wall and choose not to fight it in court.
Amazon needs to replace the books, and pay up for a license to said book.
The rights holder does not want to license the books to Amazon for sale on the Kindle, so that is not a solution.
This has happened before. The customers are NOT legally required to return the book that they bought from a reputable retailer. The sale is final, and the customer owns the book. It's not stolen property. The customer has done nothing illegal, immoral, or unethical. If the customer's ownership of said book damages the publisher, it's not the customer's fault, it's the retailer's. The retail must make good on the damages their actions caused to the publisher. It's not the customer's problem.
This is not accurate. It is the customer and the seller's problem. Copyright law, like patent law, does not recognize the bona fide purchaser defense. The improper transfer is void as an infringement of the copyright holder's right to distribute copies to the public, and the buyer has no right to the copy. What the buyer does have is an implied or explicit warranty action against the seller. The reason it doesn't normally play out that way is because of the practical difficulties of enforcing the return of the books, the litigation costs, and the PR nightmare. In this case the practical difficulties were minimal, and Amazon (wrongly) thought the litigation costs and PR nightmare would be minimal.
Imagine if you buy a product on sale, and in the parking lot, some rent-a-cop demands it back because the store's agreement with the wholesaler doesn't allow them to sell the item below MSRP. Would you return the product with no concession from the store? Hell no.
That would be a good point, except in this case Amazon refunded the purchase price (99 cents, I believe). There was a 'concession from the store.'
Nothing in Amazon's EULA or US copyright law gives them permission to delete books off your Kindle, so this sounds like a plausible suit."
This is not true. The Kindle EULA states "Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use." But Amazon cannot grant rights that it does not have, and in this case Amazon did not have the right to sell the novel in the first place, which is why they were pulled. US Copyright law most definitely empowers courts to enjoin infringers to destroy or turn over copies of infringing material. There was no judgment in this case, but Amazon likely saw the writing on the wall and felt that using its control over the platform to remove the offending copies was preferable to paying a settlement to the publisher.
Imagine a physical book store that accidentally received a shipment of books meant for another store that had an exclusive deal with the publisher. If some of those books were sold before the mistake was realized, one possible remedy would be to recall the sold books, annotations and all. Normally of course the liability would be with the book seller and in the form of monetary damages rather than specific performance (i.e., return of the books). In this case, however, Amazon's control of the platform makes it easier to remove the books than a real-world recall (good luck recalling a book paid for in cash, for example).
Now, of course, the PR backlash has shown that the right choice would have been for Amazon to own the mistake and eat the loss of paying a settlement, but at the time Amazon made a judgment call that, if the publisher decided to play hardball, it would have to remove the copies eventually anyway as the result of an injunction. I think there is every reason to believe that Amazon will react differently to future mistakes.
The idea of testing metabolite levels is not what the patents claim, though. The patents claim testing for specific levels of a specific metabolite produced by the administration of specific drugs given for a narrow class of conditions.
The immunosuppressant drugs in question (6-mercaptopurine, azathioprine, 6-thioguanine, and 6-methylmercaptopurine riboside) require very careful titration in order to be effective. Too little and they are not therapeutic, too much and they overwhelm the immune system. Thus, too little and the patient could have a potentially fatal disease flare up, too much and they could contract a fatal infection. Because of the way they work, a changed serum metabolite level takes week or months to have an effect on the disease or the immune system. Thus, it is vital that the doctor and patient be able to zero in on the correct dosage very quickly rather than through trial and error.
Figuring out which metabolite levels corresponded to the optimal dosage took a fair bit of expensive research (for starters, the drugs are not cheap, even as generics). The patent on the test is a valuable incentive for getting that research done. Mayo Clinic, which could have done the research itself, chose not to do so. Instead, it wants to free ride on the work done by Prometheus because it decided a patent infringement lawsuit is cheaper than paying for the test.
Technical Reasoning vs Legal Reasoning
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P.I.I. In the Sky
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· Score: 3, Insightful
The author suggests this:
"Look, you don't have a standard definition for PII anyway. You adapt it to each individual situation, in order to determine what privacy protections should be built into each program, by using your common sense. So that's what I'm doing to do in this situation too. And my common sense tells me that having IP addresses visible to Microsoft's servers during the Windows Update process, is not a privacy violation, because that's how downloads work."
There are several problems with this. First, reliance on common sense and deference to the individual situation creates uncertainty, which in turn invites litigation. Such non-rules create problem spaces that can only be mapped through large amounts of expensive trial and error. Well defined rules eliminate uncertainty and discourage litigation by making the result obvious from the outset.
Second, this is a district court case. The district judge is concerned with the specific problem in front of him or her: are IP addresses personally identifiable information or not. The district court has neither the time nor the need (nor the authority, really) to create rules with broad scope.
Third, this case isn't about the meaning of 'personally identifiable information' generally. It's about the meaning of the phrase within the Windows XP End User License Agreement. The ruling is about construing the language of a contract, not privacy law as such.
Fourth, this is a federal court case dealing with a state contract law issue, in this case the law of the state of Washington (note the judge's citations to Washington contract cases like Seabed Harvesting v. Dep't of Natural Resources and Elliott Bay Seafoods v. Port of Seattle). When dealing with a state law claim, the federal courts are supposed to apply the law of the state as it would be applied by a state court; they are not empowered to make new state law. Erie Railroad v. Tompkins. Thus, it would be wrong for a federal court to make broad statements about the meaning of the term 'personally identifiable information' in contracts under Washington state law. Instead, the judge did the right thing and addressed only the specific problem at hand.
Re:I would disagree with the premise.
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P.I.I. In the Sky
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· Score: 3, Insightful
Reasonable doubt may be the standard in American criminal cases, but it is not the standard in a civil case such as the one being discussed here. In an American civil case the usual standard is preponderance of the evidence, which is a 'more likely than not' or '50% + 1' standard.
Thus, for households in which the computer is used primarily by one adult, an IP address is personally identifiable in that knowing the IP address (in conjunction with information from the ISP) makes it more likely than not that the adult in question was using the computer at the time the transaction with that IP was logged. The problem is that many households have multiple computers and/or multiple users and information from the ISP is necessary to tie an IP to an individual or household. So Microsoft, which had only the IP addresses, did not have personally identifiable information.
...the judge is either an ex-lawyer of SONY or has a family member working in a high position in RIAA/MPAA. It always is the case. In fact i wouldn't be surprised if he has a financial interest in a RIAA member.
First, Judge Nancy Gertner is a woman. Second, her private practice work before becoming a judge was primarily criminal defense and civil rights. You may be interested to know that she has a blog, and it is concerned with criminal law and civil rights. She has taught courses at Boston University, Harvard, and Yale, where she primarily taught classes on criminal law and civil rights. There is zero evidence that she or anyone she is closely connected with has anything to do with the RIAA or the MPAA.
Finally, district court judges in the United States do not get to pick and choose cases: most are assigned cases on a rotating basis. Even if Judge Gertner were a corrupt tool of the media companies, she might have gone her entire career without hearing a single copyright case. In any event, the salary and employment of federal judges is guaranteed for life (unless they are impeached by Congress and removed from office), so corruption of federal judges is very rare; they have too much job security and are paid too well to risk it.
A page of history is worth a volume of logic, and a little history shows that this has nothing to do with the erosion of the power of juries.
Fair use was historically an equitable defense to copyright infringement, which means that it is a defense that would be brought in a court of equity. Courts of equity, unlike courts of law, never had juries. Even after the law and equity courts were merged in England and America, equitable issues remained the sole province of the judge.
The Seventh Amendment states: "In Suits at common law...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
The point of the phrase 'at common law' is to distinguish legal cases from equitable cases. From the very beginning of this country, jurors have never had the right to make decisions regarding equitable claims, defenses, or remedies.
Furthermore, the phrase 'no fact tried by a jury' should serve as a reminder that the role of the jury in America has also never been to judge the law but rather to judge the facts. So, a jury would answer the question 'did the defendant strike the plaintiff without provocation' but not 'is it a tort for one person to strike another without provocation.' And in fact, if a jury decides to ignore the law and find a plainly liable defendant not liable, then the plaintiff is very likely to appeal on the basis that no rational jury could find as that jury did, which is the usual standard for overturning civil jury verdicts.
The only place where jury nullification actually 'works' is the criminal law, as a jury verdict of not guilty is generally unreviewable except for things like jury tampering. As a practical matter, however, jury selection usually eliminates any possibility that the jurors will all agree to ignore the law.
In this case the judge is adjudicating the law. There is a legal question about whether it is the province of the judge or jury to decide the value of a claim to the equitable defense of fair use. You might ask why that would be a question in the first place. Mr. Beckerman (aka NewYorkCountryLawyer) has presented his side, but allow me to summarize the issue in less biased language.
American law is in large part derived from English common law. The common law had, for historical reasons, two parallel systems of courts, law courts and equity courts (I am ignoring the admiralty and ecclesiastical courts for the sake of brevity). Legal claims were brought before law courts, and law courts could give legal remedies. Legal claims are what we would think of as most normal kinds of claims (trespass, breach of contract, etc), and legal remedies are typically money damages.
The courts of equity, on the other hand, heard equitable claims and granted equitable remedies. They also followed the rules of equity rather than legal rules. It is convenient (though somewhat imprecise) to say that where the law is concerned with hard and fast rules, equity is concerned with fairness. Thus, equity courts heard cases where the common law courts failed to administer justice, whether because a rule was unfair in the particular case or because no cause of action existed to cover the particular case. Equitable remedies were also more flexible than straightforward money damages: equity courts tended to give relief in the form of an injunction. So, for example, where the law might compel a defendant who stole a painting to pay the owner its value, equity would compel the defendant to return the actual painting because it is a unique thing that cannot truly be replaced for any price.
So, being a British colony, America inherited this dual court system. Although the federal courts and all states but Delaware have since merged the courts of law and equity, the distinction between legal & equitable claims, legal & equitable defenses, and legal & equitable relief remains.
What has any of this got to do with fair use and the jury? Well, although the law courts often had factual issues decided by juries, the equitable courts did not have juries. Thus, there is a long-standing precedent that issues of equity are decided by the judge, not the jury, and fair use has been described by many courts as an equitable defense to the legal claim of copyright infringement. If you recall from the description of equity above, it amounts to a claim that, even if the defendant did infringe the plaintiff's copyright, it would not be fair or just to hold the defendant liable in this case.
You may note that fair use is codified in 17 USC 107, but that is essentially a codification of the preexisting equitable defense. Thus, some courts have found that the codification into law did not destroy the essential equitable character of the defense.
On the other hand, there are a lot of court cases where the fair use defense was submitted to a jury. Now, it could be that that happened because the judges in those cases had the law wrong or that neither side brought up the issue and the default is to submit fact-intensive questions like fair use to the jury. Or it could be that those judges had the law correct and for various reasons fair use is a question of fact to be submitted to the jury. That is what the judge would like the sides in this case to brief her on, so that she can decide that legal question before the trial begins.
First off, the rule in Summers v. Tice has been brought into the Restatement (Second) of Torts (433B(3)), is present in the final draft of the Restatement (Third) of Torts, and has been adopted by almost every jurisdiction in the country if not in fact every jurisdiction. It has also been adopted by the Canadian courts in Cook v. Lewis [1951] S.C.R. 830. It has been extremely influential.
Second, my point was not that the rule in Summers is directly applicable to federal copyright cases (it's a negligence and products liability rule, after all), but rather that the logic behind it provides a way for courts to cut through the subterfuge of defendant A pointing to defendant B and vice versa when clearly one of them must be lying. It is a potential argument in file-sharing cases, not current legal reality, but I believe it is an argument that has substantial merit.
Third, with regard to your initial point of cases being proven by various facts added together rather than smoking guns, I would say that I am in complete agreement. IP identification is not a smoking gun, but it is one fact that tends to argue in the plaintiff's favor. In another reply I mentioned other possible facts, such as that "it's the router owner's computer that has the infringing files on it, or that the router owner used the same p2p username as the infringer, or that the searches for the infringing files corresponded with when the router owner was home and never when he or she was at work." What seems clear is that IP address identification of the defendant will almost always either argue in the plaintiff's favor or at worst be neutral. It is hard to imagine a circumstance where IP address identification actually makes it less likely that the defendant committed the alleged copyright infringement. And it is that fact that makes this ruling ultimately irrelevant to file sharing litigation, to the extent that the ruling becomes an accepted precedent in the appropriate jurisdictions in the first place.
As I mentioned in a response below, the point is not that it's a negligence case, but that the same principle can be applied to these kinds of copyright infringement cases. Courts do not like the subterfuge of defendant A pointing to defendant B and vice versa when it is clear that one of them must be lying (i.e., the files got on the hard drive somehow).
And that's precisely the hole in the open wifi router argument. True, the traffic could have come from anywhere, but funny how it's the router owner's computer that has the infringing files on it, or that the router owner used the same p2p username as the infringer, or that the searches for the infringing files corresponded with when the router owner was home and never when he or she was at work. It's circumstantial evidence like that that makes the jury far more likely to believe that it was the router owner and not some wireless leech that did the infringing.
In any case I doubt many people are going to be willing to throw their wireless networks open to the world just to provide an alibi in a potential copyright infringement case, but maybe I'm wrong about that.
First, yes it's a California Supreme Court case, but it has become the law almost everywhere, if not actually everywhere. It's been very influential.
Second, I didn't argue that Summers v. Tice applied directly, only that the logic behind it could be applied to file sharing cases. Obviously these are copyright infringement cases, not negligence cases. Nonetheless the copyright holder could argue that the defendants know which of them did it, therefore if any one of them could have done it, then it's up to them to out the offender and it is not up to the plaintiff to conjure up evidence of exactly who was using the computer when. This is a potential argument, not current legal reality, but it's exactly the kind of argument that courts use to cut through the subterfuge of defendant A pointing to defendant B and vice versa when it's plain that one of them has to be lying.
Bear in mind also that the Fifth Amendment right against self-incrimination does not apply to civil cases.
It is true that an ip address identifies a computer or possibly, as another poster pointed out, a router behind which could be many computers, but that fact is largely irrelevant to file sharing litigation. The plaintiffs in those cases do not have to have ironclad evidence that it was the defendant sitting at the computer sharing the files. Instead, the plaintiffs merely have to show that it is more likely than not (aka preponderance of the evidence, 50% + 1) that it was the defendant.
Thus, if the defendant lives at home and only rarely has guests that use his or her computer, it's very likely that a jury will accept that it is more likely than not that the defendant was the one who shared the files, not a guest or an unauthorized user of the wireless network, especially if the files are found on the defendant's hard drive. More complex situations come closer to the line, of course, but in most cases it's fairly clear who the most likely culprit was.
But, even if the defendants live in an apartment with a communal computer or network shared equally by multiple long-term residents, all of whom use the same file-sharing user account, it is not necessarily up to the plaintiff to prove which specific defendant shared the files. A long standing rule in tort law from the case Summers v. Tice, 33 Cal.2d 80 (1948) establishes that where the plaintiff can prove that multiple defendants were negligent, the burden shifts to the defendants to prove which one actually committed the injury. It is quite possible that the file sharing case plaintiffs will be able to successfully argue that it is up to the various users of a computer to prove who actually shared the files or else they will all be jointly liable. This is especially likely if it can be shown that all of the defendants were aware of the file sharing program and the infringing nature of the files.
One commenter made a comparison to the Exxon Valdez case and other punitive damages cases where the damages award was reduced to be more proportionate to the actual harm. Unlike those cases, there is a statutory damages regime here, and long standing Supreme Court precedent establishes that courts must be very deferential to awards within the statutory framework. In particular, statutory damages are reviewed under a standard even more deferential than the already deferential abuse of discretion standard: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion") (via). Appellate courts are also somewhat loathe to disturb jury verdicts. The standard in the Eighth Circuit, where the Thomas case was decided, is whether 'no rational jury' could have found as the jury did. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983).
You might say, well, the ratio of damages to actual harm here is roughly a factor of 80,000, so surely that is sufficient even under that high standard. The RIAA is likely to argue that only the increased damages due to willful infringement are punitive and that the the underlying statutory damages are not inherently punitive. Should it prevail on that theory, then the resulting substantially lower ratio is likely to be seen as constitutionally permissible. Furthermore, the Supreme Court has upheld ratios as high as 113:1, for example, and the ratio alone is not sufficient to overturn the award. Phillip Morris USA v. Williams, 549 U.S. 346 (2007).
Another commenter made reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The Eighth Amendment does not apply to civil cases (not even the "excessive fines" clause). See, Ingraham v. Wright, 430 U.S. 651 (1977).
But the real crux of the issue is that the Copyright Act simply does not make an exception for individual non-commercial infringers. Assuming the facts of the case are accurate--and appellate courts do not like to disturb jury fact finding--then by the plain language of the statute Ms. Thomas is liable for a minimum of several thousand dollars in statutory damages. In my opinion the most likely outcome is that the appellate courts will let the verdict stand but strongly suggest that the legislature revise the Act to exempt individual non-commercial infringers from the statutory damages regime.
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
But in fact your comment is only available on a limited network. Viewing your comment requires access to the internet, which is a subset of all networks (e.g., the old AOL network would not have sufficed, nor would a computer in North Korea, I'm guessing). Further, access must be through a system that allows HTTP traffic to and from Slashdot's servers, which is another subset (e.g., a work computer with strong filtering would not work). The client also has to have a web browser or other means of sending HTTP requests (e.g., limited cell phones would not work).
What viewing your comment does not require is a Slashdot membership or paying an access fee. Viewed this way, making files available on Kazaa, a bittorrent network, or the like is equally public. It only requires a general purpose internet connection and freely available software. It does not require a site membership or paying an access fee (members-only torrent networks excepted, of course, but I don't believe that's at issue here).
A better of definition of 'available to the public' is whether or not the party making the files available has taken any measures whatsoever to monitor, filter, or prevent access to the files according to some criteria set by the sharer. By default, most file sharing networks make files available to all comers, so long as they obey the protocol. The same is true of a public website like Slashdot (just try reading your comment by sending malformed HTTP requests; it won't work).
So, for example, if a file-sharer limits access to a whitelist of people known to the sharer (e.g., friends), that might be different, but again, I don't think that's the case here.
There is one key element of the claims that no OS or device that I'm familiar with implements. Specifically, the list of wireless networks presented to the user must include "getting carrier network information from an access point database by the access client using the plurality of carrier network identifiers, wherein the carrier network information includes information indicating whether the access client is authorized to access a carrier network..." In short, the list of networks must include whether or not the client is authorized to access each network.
To my knowledge, no OS or device does this inherently. They may show that the network is encrypted or that it requires a username and password, but those say nothing about whether the client is authorized (i.e., allowed or permitted) to access the network. Even software that shows that a user is currently connected to a network that requires authentication only implies authorization and then only to that network, not any others.
So, as I read the patent, most existing software does not seem to infringe. One possible infringer might be the Easy Wi-Fi app for the iPhone, but it has been made obsolete by iPhone OS 3, which auto-authenticates with AT&T hotspots.
The blog post ignores the fact that a trial is a dynamic process. Had he made the arguments he lists, then RIAA lawyers would quite likely have countered them with appropriate arguments and evidence. For example:
Liability-Reproduction right Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa. Result: directed verdict on reproduction right.
If he made that argument at trial, the RIAA would almost certainly have introduced evidence that bit-for-bit identical copies of the songs in question are available on Kazaa, that such an identical copy is unlikely to have occurred if she ripped the song herself, and that she didn't own the albums in question. Circumstantial evidence, perhaps, but probably enough to get the issue to the jury instead of a directed verdict.
Some of his statements are questionable as a matter of law:
The jury should have been instructed that a "work" is an album, and that multiple mp3's from one album constitutes a single "work".
There is not particularly strong precedent on this issue. Some courts have held that this is the case, it's true, but as best I can find they were only district courts and not in the same circuit as Minnesota (where the Thomas case was held), further diminishing their already merely persuasive authority. I do not believe there is any mandatory authority on this point for the District of Minnesota, which means that the RIAA lawyers may well have been successful in persuading the judge to adopt a one song, one work basis for calculating statutory damages.
Some of his statements sound impressive but wouldn't have made a difference:
The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa
A quick check at the US Copyright Registry of a random selection of the songs that Ms. Thomas infringed shows that they were registered many years ago, in some cases over a decade ago, and easily predated any infringement by Ms. Thomas.
Ultimately, this is about drumming up interest in his law firm and ad revenue from his blog, which Slashdot happily hands him about once a week or so. It also does a lot to poison the potential jury pool for future copyright litigation, which is of great interest to a lawyer who works those kinds of cases on the side of the defense. One should take everything Mr. Beckerman says about these issues with a grain of salt appropriate to the magnitude of his self-interest.
In short, this is nothing but Monday morning quarterbacking, and not particularly good quarterbacking at that. It should also tell one something that most of his legal arguments are not backed up by citations to relevant authorities.
Software patents were forced on them by the First Circuit
I think you mean either the Federal Circuit (e.g., In re Alappat and State Street) or the Supreme Court, depending on how broadly one reads Benson, Flook, and Diehr.
If you are a server operator in Sweden, this presumably means you also cannot store IPs for later analysis of where your traffic is coming from. Now, you might say that IPs can be geocoded on the fly, but there are other issues:
You also can't log the IPs of attackers. You can't log IPs to analyze botnets. You can't log the IPs of spammers.
There are lots of legitimate reasons for private individuals and companies to store IP addresses. By forbidding it wholesale, the court is demonstrating its technological ignorance.
Finally, I'll just add that it's a common argument here that IPs don't actually correspond to individuals with any certainty because of shared computers, NAT, insecure wireless networks, dynamic IPs, etc. Clearly, the court here decided otherwise, and gave license to the government to record IP addresses. Thus, in future Swedish criminal court cases, it might be assumed that an IP address is sufficient to tie a defendant to a criminal act. I find that prospect much more disturbing than file sharers winding up in civil court on shaky evidence (which, if it's shaky, should easily be rebutted).
So only apple should be able to dim their LCD when the battery is low. So by your logic if I make an emergency call my phone should not be able to dim the screen if the battery is low?
That's not what the application claims. The applications claims "if the phone call is an emergency call, activating an emergency mode of the mobile phone to handle the phone call, wherein the emergency mode prolongs the length of the phone call." It does not claim taking battery saving measures in response to a low battery state, whether an emergency call is in progress or not. It is proactive rather than reactive.
There is no reason the government should not pass a bill, that states that any such patent as this (safety, public good), could have a value assigned to them by an arbitrator.
There are very good reasons why that's a bad idea. First, patent valuation is notoriously difficult. The literature on this is extensive and there are no good solutions, despite decades of research and a small fortune to be made from accurately valuing patents, which has many, many applications (e.g., determining R&D priorities, evaluating mergers and acquisitions, bankruptcy, etc).
Second, what is well established is that the market is a very effective evaluator of the worth of ideas and technologies. Patents allow innovators to let the market decide on the value of their products and services, which also gives them invaluable feedback on the direction their future R&D should take.
Finally, here is a hypothetical that demonstrates the above:
Consider a world without SMS, circa 1995 prior to the widespread use of cellphones. Some enterprising engineer discovers a slice of bandwidth that can be used for sending short text messages and patents it. Now imagine that the primary use envisioned for this is the sending of emergency messages to a 911-type service, which is very useful for someone who can't hear or speak because of the nature of the emergency or because they are deaf or mute. Under your scheme, the patent is seized and an arbitrator would probably decide that this is worth some modest amount as an emergency service.
Now, fast-forward 10 years and generalized SMS is an incredibly popular technology used for all kinds of purposes. Too bad for the inventor, of course, because neither he or she nor the arbitrator foresaw where the market would take the technology. If the property right had remained with the inventor, he or she could have licensed it to various phone manufacturers and telecoms and made a much more appropriate amount as SMS grew in popularity. Ex ante valuation of patents will always suffer such problems.
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[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]
It's not clear that the question actually meant 'are you admitting legal liability to the charges listed in the complaint.' It could also have meant 'are you admitting that you were liable (i.e. responsible) for the downloading of the files?' That is, "were you the one that clicked 'download?' or did the files get on your computer some other way" This is where a complete transcript would be of use. Context is everything.
Beyond that, the question was 'are you admitting liability?' not 'are you liable?' One can admit liability without rendering a legal opinion. It is very much a factual question, and it is separate from whether he is actually liable. For example, he could be lying or he could be mistaken. Of course, he had no reason to lie and there is a lot of corroborating evidence to suggest that he was in fact liable. Consequently, the judge took all of that evidence, including his admission, into account. The evidence was so overwhelming, in fact, that no rational jury could find the defendant not liable, hence the directed verdict.
As I mentioned elsewhere, Nesson's strategy has always been to give up on liability and argue that the damages are either unconstitutional or otherwise impermissible. Those arguments are for the appellate courts, however, not the trial.
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it.
The linked article doesn't give a complete transcript of the questions and answers, so I can't speak to whether the question was 'totally improper,' but as Ray Beckerman (aka NewYorkCountryLawyer) should know, it was the job of Mr. Nesson, not the judge, to object to improper questions. Furthermore, Mr. Tenenbaum was almost certainly deposed prior to trial, and Mr. Nesson would know what questions were likely to come up.
Finally, the offending question is presumably "Are you admitting liability for all 30 sound recordings?" Under FRE 704(a), an opinion as to an ultimate issue to be decided by the trier of fact is admissible (with the exception given in FRE 704(b), which does not apply here).
Lay opinion evidence is limited by FRE 701, which requires that the opinion "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Crucially, the question was not "Are you liable?" it was "are you admitting liability?" The former might possibly be objectionable, the latter is almost certainly not. In any case, Mr. Nesson did not object and so the point is largely moot.
The only reasons to disregard Mr. Tenenbaum's admission would be if the judge believed he was either lying or mistaken. He had no reason to lie, and since the other evidence makes a strong case that he was in fact liable, his admission fits with that.
In any event, Mr. Nesson's strategy has always been to admit liability but argue that the damages are unconstitutional or otherwise impermissible. He has been very clear about this in his public discussion of this and related cases.
Finally, I'll just add that the right against self-incrimination applies only to criminal cases and has no application here.
Recalls are always optional for end users. Thus they can't be used in the case of licensing problems since the books wouldn't get returned.
I did not use the recall in the sense of a voluntary product recall. I used it in the sense of an injunction requiring the seller to recover, turn over, or destroy the illegally sold copies of the copyrighted material.
In that case Amazon would need to provide the correct owner of the books with some agreed upon monetary settlement.
In fact Amazon refunded the purchase price of the book (99 cents, I believe). And that is exactly the remedy that the buyer is limited to: a recovery of the purchase price under the implied or explicit warranty that Amazon had a right to sell what it sold.
Nothing in the EULA gives amazon the right to REMOVE data from YOUR Kindle. This fact has nothing to do with their right to license the book in the first place.
This is not really about the EULA. It's about copyright law, which does not recognize a bona fide purchaser defense. The buyers did not have a right to what they received. Amazon broke the law by infringing the copyright holder's exclusive right to distribute copies to the public. It then attempted to rectify that error by removing the infringing copies from the Kindles. It did so at the behest of the rights holder. The rights holder has every right to demand removal of the infringing copies, whether by agreement with the seller or by court order. Amazon probably just saw the writing on the wall and choose not to fight it in court.
Amazon needs to replace the books, and pay up for a license to said book.
The rights holder does not want to license the books to Amazon for sale on the Kindle, so that is not a solution.
This has happened before. The customers are NOT legally required to return the book that they bought from a reputable retailer. The sale is final, and the customer owns the book. It's not stolen property. The customer has done nothing illegal, immoral, or unethical. If the customer's ownership of said book damages the publisher, it's not the customer's fault, it's the retailer's. The retail must make good on the damages their actions caused to the publisher. It's not the customer's problem.
This is not accurate. It is the customer and the seller's problem. Copyright law, like patent law, does not recognize the bona fide purchaser defense. The improper transfer is void as an infringement of the copyright holder's right to distribute copies to the public, and the buyer has no right to the copy. What the buyer does have is an implied or explicit warranty action against the seller. The reason it doesn't normally play out that way is because of the practical difficulties of enforcing the return of the books, the litigation costs, and the PR nightmare. In this case the practical difficulties were minimal, and Amazon (wrongly) thought the litigation costs and PR nightmare would be minimal.
Imagine if you buy a product on sale, and in the parking lot, some rent-a-cop demands it back because the store's agreement with the wholesaler doesn't allow them to sell the item below MSRP. Would you return the product with no concession from the store? Hell no.
That would be a good point, except in this case Amazon refunded the purchase price (99 cents, I believe). There was a 'concession from the store.'
Nothing in Amazon's EULA or US copyright law gives them permission to delete books off your Kindle, so this sounds like a plausible suit."
This is not true. The Kindle EULA states "Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use." But Amazon cannot grant rights that it does not have, and in this case Amazon did not have the right to sell the novel in the first place, which is why they were pulled. US Copyright law most definitely empowers courts to enjoin infringers to destroy or turn over copies of infringing material. There was no judgment in this case, but Amazon likely saw the writing on the wall and felt that using its control over the platform to remove the offending copies was preferable to paying a settlement to the publisher.
Imagine a physical book store that accidentally received a shipment of books meant for another store that had an exclusive deal with the publisher. If some of those books were sold before the mistake was realized, one possible remedy would be to recall the sold books, annotations and all. Normally of course the liability would be with the book seller and in the form of monetary damages rather than specific performance (i.e., return of the books). In this case, however, Amazon's control of the platform makes it easier to remove the books than a real-world recall (good luck recalling a book paid for in cash, for example).
Now, of course, the PR backlash has shown that the right choice would have been for Amazon to own the mistake and eat the loss of paying a settlement, but at the time Amazon made a judgment call that, if the publisher decided to play hardball, it would have to remove the copies eventually anyway as the result of an injunction. I think there is every reason to believe that Amazon will react differently to future mistakes.
The idea of testing metabolite levels is not what the patents claim, though. The patents claim testing for specific levels of a specific metabolite produced by the administration of specific drugs given for a narrow class of conditions.
The immunosuppressant drugs in question (6-mercaptopurine, azathioprine, 6-thioguanine, and 6-methylmercaptopurine riboside) require very careful titration in order to be effective. Too little and they are not therapeutic, too much and they overwhelm the immune system. Thus, too little and the patient could have a potentially fatal disease flare up, too much and they could contract a fatal infection. Because of the way they work, a changed serum metabolite level takes week or months to have an effect on the disease or the immune system. Thus, it is vital that the doctor and patient be able to zero in on the correct dosage very quickly rather than through trial and error.
Figuring out which metabolite levels corresponded to the optimal dosage took a fair bit of expensive research (for starters, the drugs are not cheap, even as generics). The patent on the test is a valuable incentive for getting that research done. Mayo Clinic, which could have done the research itself, chose not to do so. Instead, it wants to free ride on the work done by Prometheus because it decided a patent infringement lawsuit is cheaper than paying for the test.
The author suggests this:
There are several problems with this. First, reliance on common sense and deference to the individual situation creates uncertainty, which in turn invites litigation. Such non-rules create problem spaces that can only be mapped through large amounts of expensive trial and error. Well defined rules eliminate uncertainty and discourage litigation by making the result obvious from the outset.
Second, this is a district court case. The district judge is concerned with the specific problem in front of him or her: are IP addresses personally identifiable information or not. The district court has neither the time nor the need (nor the authority, really) to create rules with broad scope.
Third, this case isn't about the meaning of 'personally identifiable information' generally. It's about the meaning of the phrase within the Windows XP End User License Agreement. The ruling is about construing the language of a contract, not privacy law as such.
Fourth, this is a federal court case dealing with a state contract law issue, in this case the law of the state of Washington (note the judge's citations to Washington contract cases like Seabed Harvesting v. Dep't of Natural Resources and Elliott Bay Seafoods v. Port of Seattle). When dealing with a state law claim, the federal courts are supposed to apply the law of the state as it would be applied by a state court; they are not empowered to make new state law. Erie Railroad v. Tompkins. Thus, it would be wrong for a federal court to make broad statements about the meaning of the term 'personally identifiable information' in contracts under Washington state law. Instead, the judge did the right thing and addressed only the specific problem at hand.
Reasonable doubt may be the standard in American criminal cases, but it is not the standard in a civil case such as the one being discussed here. In an American civil case the usual standard is preponderance of the evidence, which is a 'more likely than not' or '50% + 1' standard.
Thus, for households in which the computer is used primarily by one adult, an IP address is personally identifiable in that knowing the IP address (in conjunction with information from the ISP) makes it more likely than not that the adult in question was using the computer at the time the transaction with that IP was logged. The problem is that many households have multiple computers and/or multiple users and information from the ISP is necessary to tie an IP to an individual or household. So Microsoft, which had only the IP addresses, did not have personally identifiable information.
...the judge is either an ex-lawyer of SONY or has a family member working in a high position in RIAA/MPAA. It always is the case. In fact i wouldn't be surprised if he has a financial interest in a RIAA member.
First, Judge Nancy Gertner is a woman. Second, her private practice work before becoming a judge was primarily criminal defense and civil rights. You may be interested to know that she has a blog, and it is concerned with criminal law and civil rights. She has taught courses at Boston University, Harvard, and Yale, where she primarily taught classes on criminal law and civil rights. There is zero evidence that she or anyone she is closely connected with has anything to do with the RIAA or the MPAA.
Finally, district court judges in the United States do not get to pick and choose cases: most are assigned cases on a rotating basis. Even if Judge Gertner were a corrupt tool of the media companies, she might have gone her entire career without hearing a single copyright case. In any event, the salary and employment of federal judges is guaranteed for life (unless they are impeached by Congress and removed from office), so corruption of federal judges is very rare; they have too much job security and are paid too well to risk it.
A page of history is worth a volume of logic, and a little history shows that this has nothing to do with the erosion of the power of juries.
Fair use was historically an equitable defense to copyright infringement, which means that it is a defense that would be brought in a court of equity. Courts of equity, unlike courts of law, never had juries. Even after the law and equity courts were merged in England and America, equitable issues remained the sole province of the judge.
The Seventh Amendment states: "In Suits at common law...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
The point of the phrase 'at common law' is to distinguish legal cases from equitable cases. From the very beginning of this country, jurors have never had the right to make decisions regarding equitable claims, defenses, or remedies.
Furthermore, the phrase 'no fact tried by a jury' should serve as a reminder that the role of the jury in America has also never been to judge the law but rather to judge the facts. So, a jury would answer the question 'did the defendant strike the plaintiff without provocation' but not 'is it a tort for one person to strike another without provocation.' And in fact, if a jury decides to ignore the law and find a plainly liable defendant not liable, then the plaintiff is very likely to appeal on the basis that no rational jury could find as that jury did, which is the usual standard for overturning civil jury verdicts.
The only place where jury nullification actually 'works' is the criminal law, as a jury verdict of not guilty is generally unreviewable except for things like jury tampering. As a practical matter, however, jury selection usually eliminates any possibility that the jurors will all agree to ignore the law.
In this case the judge is adjudicating the law. There is a legal question about whether it is the province of the judge or jury to decide the value of a claim to the equitable defense of fair use. You might ask why that would be a question in the first place. Mr. Beckerman (aka NewYorkCountryLawyer) has presented his side, but allow me to summarize the issue in less biased language.
American law is in large part derived from English common law. The common law had, for historical reasons, two parallel systems of courts, law courts and equity courts (I am ignoring the admiralty and ecclesiastical courts for the sake of brevity). Legal claims were brought before law courts, and law courts could give legal remedies. Legal claims are what we would think of as most normal kinds of claims (trespass, breach of contract, etc), and legal remedies are typically money damages.
The courts of equity, on the other hand, heard equitable claims and granted equitable remedies. They also followed the rules of equity rather than legal rules. It is convenient (though somewhat imprecise) to say that where the law is concerned with hard and fast rules, equity is concerned with fairness. Thus, equity courts heard cases where the common law courts failed to administer justice, whether because a rule was unfair in the particular case or because no cause of action existed to cover the particular case. Equitable remedies were also more flexible than straightforward money damages: equity courts tended to give relief in the form of an injunction. So, for example, where the law might compel a defendant who stole a painting to pay the owner its value, equity would compel the defendant to return the actual painting because it is a unique thing that cannot truly be replaced for any price.
So, being a British colony, America inherited this dual court system. Although the federal courts and all states but Delaware have since merged the courts of law and equity, the distinction between legal & equitable claims, legal & equitable defenses, and legal & equitable relief remains.
What has any of this got to do with fair use and the jury? Well, although the law courts often had factual issues decided by juries, the equitable courts did not have juries. Thus, there is a long-standing precedent that issues of equity are decided by the judge, not the jury, and fair use has been described by many courts as an equitable defense to the legal claim of copyright infringement. If you recall from the description of equity above, it amounts to a claim that, even if the defendant did infringe the plaintiff's copyright, it would not be fair or just to hold the defendant liable in this case.
You may note that fair use is codified in 17 USC 107, but that is essentially a codification of the preexisting equitable defense. Thus, some courts have found that the codification into law did not destroy the essential equitable character of the defense.
On the other hand, there are a lot of court cases where the fair use defense was submitted to a jury. Now, it could be that that happened because the judges in those cases had the law wrong or that neither side brought up the issue and the default is to submit fact-intensive questions like fair use to the jury. Or it could be that those judges had the law correct and for various reasons fair use is a question of fact to be submitted to the jury. That is what the judge would like the sides in this case to brief her on, so that she can decide that legal question before the trial begins.
First off, the rule in Summers v. Tice has been brought into the Restatement (Second) of Torts (433B(3)), is present in the final draft of the Restatement (Third) of Torts, and has been adopted by almost every jurisdiction in the country if not in fact every jurisdiction. It has also been adopted by the Canadian courts in Cook v. Lewis [1951] S.C.R. 830. It has been extremely influential.
Second, my point was not that the rule in Summers is directly applicable to federal copyright cases (it's a negligence and products liability rule, after all), but rather that the logic behind it provides a way for courts to cut through the subterfuge of defendant A pointing to defendant B and vice versa when clearly one of them must be lying. It is a potential argument in file-sharing cases, not current legal reality, but I believe it is an argument that has substantial merit.
Third, with regard to your initial point of cases being proven by various facts added together rather than smoking guns, I would say that I am in complete agreement. IP identification is not a smoking gun, but it is one fact that tends to argue in the plaintiff's favor. In another reply I mentioned other possible facts, such as that "it's the router owner's computer that has the infringing files on it, or that the router owner used the same p2p username as the infringer, or that the searches for the infringing files corresponded with when the router owner was home and never when he or she was at work." What seems clear is that IP address identification of the defendant will almost always either argue in the plaintiff's favor or at worst be neutral. It is hard to imagine a circumstance where IP address identification actually makes it less likely that the defendant committed the alleged copyright infringement. And it is that fact that makes this ruling ultimately irrelevant to file sharing litigation, to the extent that the ruling becomes an accepted precedent in the appropriate jurisdictions in the first place.
As I mentioned in a response below, the point is not that it's a negligence case, but that the same principle can be applied to these kinds of copyright infringement cases. Courts do not like the subterfuge of defendant A pointing to defendant B and vice versa when it is clear that one of them must be lying (i.e., the files got on the hard drive somehow).
And that's precisely the hole in the open wifi router argument. True, the traffic could have come from anywhere, but funny how it's the router owner's computer that has the infringing files on it, or that the router owner used the same p2p username as the infringer, or that the searches for the infringing files corresponded with when the router owner was home and never when he or she was at work. It's circumstantial evidence like that that makes the jury far more likely to believe that it was the router owner and not some wireless leech that did the infringing.
In any case I doubt many people are going to be willing to throw their wireless networks open to the world just to provide an alibi in a potential copyright infringement case, but maybe I'm wrong about that.
First, yes it's a California Supreme Court case, but it has become the law almost everywhere, if not actually everywhere. It's been very influential.
Second, I didn't argue that Summers v. Tice applied directly, only that the logic behind it could be applied to file sharing cases. Obviously these are copyright infringement cases, not negligence cases. Nonetheless the copyright holder could argue that the defendants know which of them did it, therefore if any one of them could have done it, then it's up to them to out the offender and it is not up to the plaintiff to conjure up evidence of exactly who was using the computer when. This is a potential argument, not current legal reality, but it's exactly the kind of argument that courts use to cut through the subterfuge of defendant A pointing to defendant B and vice versa when it's plain that one of them has to be lying.
Bear in mind also that the Fifth Amendment right against self-incrimination does not apply to civil cases.
It is true that an ip address identifies a computer or possibly, as another poster pointed out, a router behind which could be many computers, but that fact is largely irrelevant to file sharing litigation. The plaintiffs in those cases do not have to have ironclad evidence that it was the defendant sitting at the computer sharing the files. Instead, the plaintiffs merely have to show that it is more likely than not (aka preponderance of the evidence, 50% + 1) that it was the defendant.
Thus, if the defendant lives at home and only rarely has guests that use his or her computer, it's very likely that a jury will accept that it is more likely than not that the defendant was the one who shared the files, not a guest or an unauthorized user of the wireless network, especially if the files are found on the defendant's hard drive. More complex situations come closer to the line, of course, but in most cases it's fairly clear who the most likely culprit was.
But, even if the defendants live in an apartment with a communal computer or network shared equally by multiple long-term residents, all of whom use the same file-sharing user account, it is not necessarily up to the plaintiff to prove which specific defendant shared the files. A long standing rule in tort law from the case Summers v. Tice, 33 Cal.2d 80 (1948) establishes that where the plaintiff can prove that multiple defendants were negligent, the burden shifts to the defendants to prove which one actually committed the injury. It is quite possible that the file sharing case plaintiffs will be able to successfully argue that it is up to the various users of a computer to prove who actually shared the files or else they will all be jointly liable. This is especially likely if it can be shown that all of the defendants were aware of the file sharing program and the infringing nature of the files.
One commenter made a comparison to the Exxon Valdez case and other punitive damages cases where the damages award was reduced to be more proportionate to the actual harm. Unlike those cases, there is a statutory damages regime here, and long standing Supreme Court precedent establishes that courts must be very deferential to awards within the statutory framework. In particular, statutory damages are reviewed under a standard even more deferential than the already deferential abuse of discretion standard: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion") (via). Appellate courts are also somewhat loathe to disturb jury verdicts. The standard in the Eighth Circuit, where the Thomas case was decided, is whether 'no rational jury' could have found as the jury did. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983).
You might say, well, the ratio of damages to actual harm here is roughly a factor of 80,000, so surely that is sufficient even under that high standard. The RIAA is likely to argue that only the increased damages due to willful infringement are punitive and that the the underlying statutory damages are not inherently punitive. Should it prevail on that theory, then the resulting substantially lower ratio is likely to be seen as constitutionally permissible. Furthermore, the Supreme Court has upheld ratios as high as 113:1, for example, and the ratio alone is not sufficient to overturn the award. Phillip Morris USA v. Williams, 549 U.S. 346 (2007).
Another commenter made reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The Eighth Amendment does not apply to civil cases (not even the "excessive fines" clause). See, Ingraham v. Wright, 430 U.S. 651 (1977).
But the real crux of the issue is that the Copyright Act simply does not make an exception for individual non-commercial infringers. Assuming the facts of the case are accurate--and appellate courts do not like to disturb jury fact finding--then by the plain language of the statute Ms. Thomas is liable for a minimum of several thousand dollars in statutory damages. In my opinion the most likely outcome is that the appellate courts will let the verdict stand but strongly suggest that the legislature revise the Act to exempt individual non-commercial infringers from the statutory damages regime.
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
But in fact your comment is only available on a limited network. Viewing your comment requires access to the internet, which is a subset of all networks (e.g., the old AOL network would not have sufficed, nor would a computer in North Korea, I'm guessing). Further, access must be through a system that allows HTTP traffic to and from Slashdot's servers, which is another subset (e.g., a work computer with strong filtering would not work). The client also has to have a web browser or other means of sending HTTP requests (e.g., limited cell phones would not work).
What viewing your comment does not require is a Slashdot membership or paying an access fee. Viewed this way, making files available on Kazaa, a bittorrent network, or the like is equally public. It only requires a general purpose internet connection and freely available software. It does not require a site membership or paying an access fee (members-only torrent networks excepted, of course, but I don't believe that's at issue here).
A better of definition of 'available to the public' is whether or not the party making the files available has taken any measures whatsoever to monitor, filter, or prevent access to the files according to some criteria set by the sharer. By default, most file sharing networks make files available to all comers, so long as they obey the protocol. The same is true of a public website like Slashdot (just try reading your comment by sending malformed HTTP requests; it won't work).
So, for example, if a file-sharer limits access to a whitelist of people known to the sharer (e.g., friends), that might be different, but again, I don't think that's the case here.
There is one key element of the claims that no OS or device that I'm familiar with implements. Specifically, the list of wireless networks presented to the user must include "getting carrier network information from an access point database by the access client using the plurality of carrier network identifiers, wherein the carrier network information includes information indicating whether the access client is authorized to access a carrier network..." In short, the list of networks must include whether or not the client is authorized to access each network.
To my knowledge, no OS or device does this inherently. They may show that the network is encrypted or that it requires a username and password, but those say nothing about whether the client is authorized (i.e., allowed or permitted) to access the network. Even software that shows that a user is currently connected to a network that requires authentication only implies authorization and then only to that network, not any others.
So, as I read the patent, most existing software does not seem to infringe. One possible infringer might be the Easy Wi-Fi app for the iPhone, but it has been made obsolete by iPhone OS 3, which auto-authenticates with AT&T hotspots.
Rips from CDs should be identical, but not mp3 encodings. Different mp3 encoders will often produce at least slightly different output.
I got my JD from Washington University in St. Louis. I also have both Bachelor's and Master's degrees in computer science. I know whereof I speak.
The blog post ignores the fact that a trial is a dynamic process. Had he made the arguments he lists, then RIAA lawyers would quite likely have countered them with appropriate arguments and evidence. For example:
Liability-Reproduction right
Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa.
Result: directed verdict on reproduction right.
If he made that argument at trial, the RIAA would almost certainly have introduced evidence that bit-for-bit identical copies of the songs in question are available on Kazaa, that such an identical copy is unlikely to have occurred if she ripped the song herself, and that she didn't own the albums in question. Circumstantial evidence, perhaps, but probably enough to get the issue to the jury instead of a directed verdict.
Some of his statements are questionable as a matter of law:
The jury should have been instructed that a "work" is an album, and that multiple mp3's from one album constitutes a single "work".
There is not particularly strong precedent on this issue. Some courts have held that this is the case, it's true, but as best I can find they were only district courts and not in the same circuit as Minnesota (where the Thomas case was held), further diminishing their already merely persuasive authority. I do not believe there is any mandatory authority on this point for the District of Minnesota, which means that the RIAA lawyers may well have been successful in persuading the judge to adopt a one song, one work basis for calculating statutory damages.
Some of his statements sound impressive but wouldn't have made a difference:
The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa
A quick check at the US Copyright Registry of a random selection of the songs that Ms. Thomas infringed shows that they were registered many years ago, in some cases over a decade ago, and easily predated any infringement by Ms. Thomas.
Ultimately, this is about drumming up interest in his law firm and ad revenue from his blog, which Slashdot happily hands him about once a week or so. It also does a lot to poison the potential jury pool for future copyright litigation, which is of great interest to a lawyer who works those kinds of cases on the side of the defense. One should take everything Mr. Beckerman says about these issues with a grain of salt appropriate to the magnitude of his self-interest.
In short, this is nothing but Monday morning quarterbacking, and not particularly good quarterbacking at that. It should also tell one something that most of his legal arguments are not backed up by citations to relevant authorities.
Software patents were forced on them by the First Circuit
I think you mean either the Federal Circuit (e.g., In re Alappat and State Street) or the Supreme Court, depending on how broadly one reads Benson, Flook, and Diehr.
If you are a server operator in Sweden, this presumably means you also cannot store IPs for later analysis of where your traffic is coming from. Now, you might say that IPs can be geocoded on the fly, but there are other issues:
You also can't log the IPs of attackers. You can't log IPs to analyze botnets. You can't log the IPs of spammers.
There are lots of legitimate reasons for private individuals and companies to store IP addresses. By forbidding it wholesale, the court is demonstrating its technological ignorance.
Finally, I'll just add that it's a common argument here that IPs don't actually correspond to individuals with any certainty because of shared computers, NAT, insecure wireless networks, dynamic IPs, etc. Clearly, the court here decided otherwise, and gave license to the government to record IP addresses. Thus, in future Swedish criminal court cases, it might be assumed that an IP address is sufficient to tie a defendant to a criminal act. I find that prospect much more disturbing than file sharers winding up in civil court on shaky evidence (which, if it's shaky, should easily be rebutted).
So only apple should be able to dim their LCD when the battery is low. So by your logic if I make an emergency call my phone should not be able to dim the screen if the battery is low?
That's not what the application claims. The applications claims "if the phone call is an emergency call, activating an emergency mode of the mobile phone to handle the phone call, wherein the emergency mode prolongs the length of the phone call." It does not claim taking battery saving measures in response to a low battery state, whether an emergency call is in progress or not. It is proactive rather than reactive.
There is no reason the government should not pass a bill, that states that any such patent as this (safety, public good), could have a value assigned to them by an arbitrator.
There are very good reasons why that's a bad idea. First, patent valuation is notoriously difficult. The literature on this is extensive and there are no good solutions, despite decades of research and a small fortune to be made from accurately valuing patents, which has many, many applications (e.g., determining R&D priorities, evaluating mergers and acquisitions, bankruptcy, etc).
Second, what is well established is that the market is a very effective evaluator of the worth of ideas and technologies. Patents allow innovators to let the market decide on the value of their products and services, which also gives them invaluable feedback on the direction their future R&D should take.
Finally, here is a hypothetical that demonstrates the above:
Consider a world without SMS, circa 1995 prior to the widespread use of cellphones. Some enterprising engineer discovers a slice of bandwidth that can be used for sending short text messages and patents it. Now imagine that the primary use envisioned for this is the sending of emergency messages to a 911-type service, which is very useful for someone who can't hear or speak because of the nature of the emergency or because they are deaf or mute. Under your scheme, the patent is seized and an arbitrator would probably decide that this is worth some modest amount as an emergency service.
Now, fast-forward 10 years and generalized SMS is an incredibly popular technology used for all kinds of purposes. Too bad for the inventor, of course, because neither he or she nor the arbitrator foresaw where the market would take the technology. If the property right had remained with the inventor, he or she could have licensed it to various phone manufacturers and telecoms and made a much more appropriate amount as SMS grew in popularity. Ex ante valuation of patents will always suffer such problems.