I don't understand the statement that some "counterclaim" was dismissed. The defendant did not have any counterclaims. She did make a Rule 11 motion for sanctions against the RIAA's attorneys. That motion is still pending.
I think that the submitter was referring to the "counter-complaint" mentioned in the article. The article said that Magistrate Judge "Levy also ruled that the RIAA, which has sued 30,000 individuals, was not a vexatious litigant, shooting down Beckerman's counter-complaint." The article then quotes a portion of the opinion where Judge Levy says that he found "no evidence of undue vexatiousness or ill motive on" the part of the plaintiffs'. Judge Levy was discussing Ms. Lindor's request that the case be dismissed with prejudice. Thus, this request is probably the "counterclaim" mentioned in the story summary.
The summary's language is not legally precise language, but it is an understandable mistake.
And I see that you have avoided replying to my more general point, which is that your average filesharer does very little economic damage to the record labels, putting them in the very uncomfortable position of trying to fight an enormous fog of tiny droplets with a laser cannon.
I agree with you. That is a horrible situation to be in. Right now, file sharing is like a lottery where the prize is a lawsuit. Every time someone downloads a song from you it's like being given another ticket. If your luck has run out, the person downloading it is some kind of investigation service that will turn over your IP address and the download time over to the copyright owner. The risk of a lawsuit means that file sharing is not free. But it also is horrible for the public relations of an entire industry.
I have commented on statutory damages. I'm not strictly against them. If you adjust for the risk of getting caught, they start to look reasonable (e.g., if the risk of getting caught sharing one file is assumed to be 1 in 10,000, then the risk-adjusted expected damages for willfully sharing the file is only $0.075 to $15).
I think statutory damages could be reformed though. Perhaps by lowering the maximum damages for file-sharing where no money was exchanged, eliminating or reducing the minimum statutory damages, or excluding from evidence works that are not part of the suit (to avoid award inflation by the jury).
Since you seem rather reasonable, I have a question: you talk about both sides' rights. Are you in favor of legislation in the "three strikes" style which tries (in my eyes badly) to "balance" economic rights like copyright versus human rights like freedom of speech and the right to due process?
I try to be reasonable, but I'll settle for seeming to be reasonable. As for three strikes laws...I really haven't given them much thought. My limited (and probably flawed) understanding of them is that they involve blanket injunctions against using the internet after repeat copyright infringement convictions. This seems too much like an enroachment on free speech. Sure, with the present U.S. system, copyright infringers may end up owing thousands of dollars for file sharing, but at least they can still argue, in worldwide fora, that justice was miscarried.
Ah. So if a random person infringes copyright using my net connection, possibly even without my knowledge, it is reasonable for me to have to defend myself in court for several years? I like the added touch of your "just" --- "just took several years". Do you have any idea what that costs?
This wasn't exactly a random person. This was the defendant's daughter, who brought a computer into the defendant's home at the time of the alleged infringement. It sucks being stuck in a lawsuit because you don't remember that your daughter was using your internet connection. But unreasonable for the plaintiff to continue the lawsuit when crucial facts have not been discovered...I'm not so sure.
To be clear, by "just" I meant that the several year delay was due to the several years it took to identify the right defendant (it just took several years before...). I did not mean that the length of time was insignificant (it took just several years before...). Thank you for pointing out the potential for miscommunication.
Marie Lindor, Beckerman's client,...was accused of making copyrighted music available on the Kazaa file sharing program. After five depositions and three years of legal maneuvering, the RIAA has dropped the case against the woman whom Beckerman said has "never turned on a computer.
Let me get this straight. Who's providing "false information," "misdirecting... relevant facts and events," and concealing "critical information and evidence regarding the infringement at issue" again?
According to the decision, "plaintiffs' counsel requested leave to file this motion, having learned less than one month earlier, at the deposition of Yanick
Raymond-Wright, that defendant's daughter had brought a desktop computer into her mother's
home and had connected it to the Internet in the summer of 2004" (emphasis added). The decision goes on to day that "[d]efendant does not suggest that plaintiffs could have
discovered this information sooner, as neither defendant nor the other deponents in this case
recalled Ms. Raymond-Wright's 2004 visit or the presence of her computer in her mother's
home."
It sounds like they sued Ms. Lindor because of alleged infringement activities that were traced to her internet account. Then they kept the suit open while trying to find out who might have used her account. It looks like it just took several years before they could identify the right defendant. It also looks like the defendant's incomplete testimony is one of the reasons why the plaintiffs did not identify the right defendant earlier.
JFC. The arrogance and hypocrisy is mind-boggling.
The Magistrate Judge probably reviewed the evidence presented pretty closely and with an open mind. The opinion seems well-reasoned and balanced on its face. I personally would not second-guess the opinion without taking some time to review the evidence at least as closely.
The last line of the linked article reads, "Expect a ruling on the RIAA's motion for sanctions soon."
Judge Trager did act on the plaintiff and defendant motions quickly. In December he referred the motions to Magistrate Judge Levy. You don't think that saying "my decision is . . . probably whatever this guy decides" counts as a decision?
Oh, going and doing some independent research, huh? Well, umm... thanks;)
Well, not that independent. The decision was the first link in the article. Instead of reading the article, I just read the decision. When I saw your post, I went back to it and searched for vexatious to see if you what you said was accurate.
It seems like a decent opinion. The decision to levy sanctions should not be taken lightly. Neither plaintiffs nor defendants should be discouraged from exercising their legal rights.
For those who dared not taint their eyes with a quote from TFA, I will further clarify: NewYorkCountryLawyer was not accused of being vexatious.
The decision said that, "[a]ccording to plaintiffs . . . counsel
'intentionally provided false information, attempted to misdirect Plaintiffs as to relevant facts
and events, and concealed critical information and evidence regarding the infringement at issue,'
unreasonably and vexatiously multiplying this litigation and severely prejudicing plaintiffs' ability to learn the critical facts." The complaint sought monetary sanctions under 28 U.S.C. Sec. 1927, which only allows for sanctions if the accused attorney "multiplies the proceedings in any case unreasonably and vexatiously."
The Princess Bride. Many students will have seen the movie, but they have no idea that it is a book and that the book is completely hilarious (and you can fool them into thinking it's an abridgment).
Excellent choice! It's a good book for introducing students to postmodernism and makes for a nice study of humor in fantasy literature.
Ender's Game. This is one of the best sci-fi stories I've ever read. The ending really surprised me.
As fun as Ender's Game is...I disagree. It is certainly well-written and ingenuitive, but strikes me as mostly an action-oriented adventure with little to challenge the reader. Xenocide has more going for it in the way of moral dilemas, the demands for survival, the metaphysical, and the alien (obligatory xkcd ref). Alternatively, Shadow Puppets has much to say about how nations exercise power and how alliances form. Unfortunately, both works can be a bit confusing without having read their predecessors.
Starship Troopers. The book is much better than the movie and has lots of interesting political ramifications to discuss.
That is.. take an enjoyable experience (i.e. reading a good book) and turn it into a complete chore by over-analysing everything to the point that students shun reading forever.
This seems to be an overreaction to a request for ideas on what should be part of a sci-fi/fantasy literature course. Students who just want to read sci-fi/fantasy for fun probably do not have to take this course. They can take a regular English course and then read sci-fi/fantasy for fun on the side. But students who take this course should be challenged in some way.
Perhaps the course should expose them to sci-fi/fantasy literature not circulating among the students' circles of friends. Perhaps they should be able to identify motifs or narrative structures that help define the genres. Or perhaps they should be able to relate the materials to the real world in a way that they didn't think about before.
But students taking such a course shouldn't leave it without developing something more than the ability to say "I like fun stories." If that's it, then they haven't been challenged and might as well have had the class period off.
That said.. if this is your intention though.. 1984 is a must. You can (and people have) turn just about any paragraph in that book into a masters thesis.
Can't disagree with you there. Nineteen Eighty-Four wasn't on my original list, but it should have been. Too many people talk about 1984 without having read it and given it critical thought. It is highly-relevant today on several levels, but many misunderstand or oversimply its relevancy.
I'd add some H. G. Wells and John W. Campbell - classics before Asimov (although Campbell's personal views are somewhat controversial now). And of course Asimov was mentioned by some people above me already.
I agree completely about looking beyond Asimov and company. I can't vouch for the Campbell (never read anything of his before). But here is my list of top picks.
Mary Shelly's Frankenstein is an excellent bit of classical literature that deals with topics such as hubris, justice, and divinity. It is also an enjoyable, easy read.
The War of the Worlds is notable for being written in a timeless style. Its parallels to the imperialism of the British Empire is excellent fodder for in depth student research.
Good Omens nicely turns Christian Apocalypse doctrine on its head while providing insights into the battles between bureaucracies and nation-states. May be controversial because of its connection to religious doctrine, but one of the more entertaining pieces on this list.
Gulliver's Travels, which is excellent satire, even if some of its messages are a bit heavy-handed. A little harder to read than some of the others, but an excellent piece nonetheless. Plus, there are so many common memes that derive from these tales. The various parts are easily read separately. If you only assign part of it, I would keep A Voyage to Lilliput and A Voyage to Houyhnhnms.
The Lottery is a must-read. You should find out if many of your students have been exposed to this from other literature courses. If not, then go for it! It has so many lessons about peer-pressure, hypocrisy, institutional momentum, and more. Plus, it is the exemplar "twist ending."
Organisations like the RIAA have unfathomably stupid people like yourself to act as their cheerleaders . . . The RIAA and its' ideas do not need to be defended; they need to be unsparingly, uncompromisingly, and completely annihilated. You are on the wrong side of this argument.
Why is there such a pervasive belief (or use of rhetoric that claims) that people who hold different positions or have different beliefs are necessarily stupid or inferior? Can't intelligent, reasonable people reach different conclusions of the world, even given the same evidence?
Aristotle had beliefs about the world that we know were flawed. Newton's beliefs were incomplete (and he was a bad investor to boot). Yet, I would not dream of calling either men stupid.
After several hundreds of years have passed, perhaps the level of copyright will have looked like a failed legal experiment (along with The Ordeals). Or, maybe copyright holders will have more control over their works, making their current level of control appear as weak in comparison (like looking back today at how women could not really own property in the past).
Discussion and debate about rights and responsibilities is healthy and an important part of the development of law. But perhaps we should show some civility to each other by recognizing that great minds do not think alike. Intelligent, reasonable people can view the world in different ways.
I do not think it necessary to say preface everything with "someday I may be proven wrong . . . " I just suggest avoiding ad hominem attacks except in the most rare cases where no intelligent, reasonable person can hold certain, highly-harmful beliefs.
You could tell the children that copyright is not absolute, and that its primary purpose is to allow creators to make money off their copyrights. Sometimes, you can use pieces of their material for certain uses. You could follow it up with a few simple examples, like a short piece of a song, a screenshot of a game, etc.
Sure you could tell children that. It makes sense to discuss fair use in a context where it is most applicable (e.g., when teaching about music composition or research paper drafting). But it is just a distraction when trying to discourage non-creative, infringing uses of copyrighted works (software piracy, P2P sharing of ripped music tracks, etc.).
Fair use is not as simple as you might think. When a court is faced with a fair use defense, all four factors of fair use have to be considered:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
To make matters worse, fair use is considered a defense to copyright infringement (first developed in the courts and then codified by Congress), not a right. Thus, if you are doing something that might be considered a fair use in court, the copyright holder can sue and you have the burden of proving. The copyright holder doesn't have to first prove that your use was not fair.
Additionally, trying to give "a few simple examples" is not as trivial as you think. A short piece of a song, sampled by a music artist and distributed commercially, might not be a fair use. A screenshot of a game, plastered on the cover of a third-party rip-off game, could be infringement too.
The easy solution to that is to (in addition to the inquisitorial elements you already mentioned) simply allow the jurors themselves to ask questions of everyone involved - the judge, the attorneys, and the witnesses, *during* the trial, and to allow for the jurors to have private discussions among themselves at any time. IMO there's also no reason at all for the jury to not have access to the transcript at any time.
But even this easy solution can be problematic. Each side in a trial typically has a certain amount of time in which to make their case. If jurors pepper one side with questions, that side may be put at a disadvantage. Jurors might inadvertently ask questions that would require the introduction of evidence specifically excluded from the trial. It would certainly look bad to a juror to have one side's lawyer object to the juror's innocent question.
I'm not saying that our current system is perfect. I'm just saying that it might not be easy to change the system without introducing new problems.
You don't think a juror is entitled to rely on his own education and experience either? After all, the "other side" doesn't get to challenge what his grade 10 bookkeeping class teacher may or may not have taught him about accounting.
Whether jurors are entitled to rely on previous education and experience is immaterial, they are going to bring with them their existing knowledge and perspective of the world. Of course, this can cause problems (e.g., if the 10th grade teacher did a poor job teaching bookkeeping, or if the juror did not actually learn or has forgotten the material).
The risk that jurors might be biased is supposed to be mitigated by voir dire, which gives the lawyers a chance to ask questions. For example, a lawyer might ask "have you studied bookkeeping before? this case involves accounting nuances that may be more advanced than what you have studied; would you be able to listen attentively, even when basic accounting concepts are discussed, so that you fully understand the facts, arguments, and issues?" If a juror says "I don't think I'd pay much attention to the basic stuff," then that juror might be stricken to avoid having someone on the jury panel who, because of pre-existing education, might have ignored something important.
I think that judges encourage jurors to put aside their pre-existing notions too. And, for what it is worth, I suspect most jurors try to keep an open mind and do the best job possible. Independent investigation by jurors, for better or worse, is a symptom of jurors trying to do a good job.
Yes we wouldn't want anyone to color anyone's perception of any facts, of law or of the circumstances of the case, would we?
No wait, that is what the attorneys are doing and I expect news bans and Google bans are lawyers attempting to protect their income streams.
The article made a similar point and even went so far as to argue that the more information available to a jury, the better. However, there is some sense in our system and there are valid reasons for discouraging independent investigation by jurors.
When one side presents information to jurors in the courtroom, the other side has the opportunity to challenge that information. Contradictory information can be provided, the credibility of the source can be challenged, or its relevance to the case can be questioned.
Information that jurors seek out on their own cannot be challenged. How can it be? If the jurors seek outside information, then the parties won't know what information they obtained, where the obtained it, and (without enough time) how to challenge the information. Is it fair for a party to lose based on evidence that the party never was given an opportunity to challenge?
Our jury system is effectively an adversarial system. The two sides present a case while the jury sits back and absorbs the facts and arguments. If jurors are systemically undermining this approach to law, it might make sense to adopt elements of an inquisitorial system. Jurors could conduct their own research provided they made clear what additional information they uncover and give the parties the opportunity to challenge that information.
It is false that "false or unjustified" implies falsehood.
But does that mean that "false or unjustified" can include truth? Think about it. Any bit of knowledge can be true, false, or possible (that is, it could be true, or it could be false, but its truthiness is unknown. Thus, a statement of something that is possible (e.g., "X is actually an alien from outer space sent here to spy on humanity") may be defamatory if it is unjustified (i.e., there is no evidence to sustain the allegation). The interesting question is whether one is liable if the statement was unjustified when said, but proven to be true (and thus justifiable in hindsight) in court.
Here is some pseudo-code to help you out in understanding how I view the article's characterization of British libel law (sorry that it is all left-indented...I don't know how to get/. to embed a pseudocode-snippet properly):
// s a statement about p, an allegedly defamed person
if (exposes(publication(s), p, TO_HATE) || exposes(publication(s), p, TO_RIDICULE) ||
causes(publication(s), p, TO_BE_SHUNNED) ||
estimation_of(publication(s), p, RIGHT_THINKING) < estimation_of(NULL, p, RIGHT_THINKING)) ||
disparages(public(s), work_of(p))) {
if (is_true(s) || is_fair_comment(s) || is_protected_by_privilege(s)) {
libel = false;
} else
libel = true;
}
} else {
libel = false;
}
This is a typical way for affirmative defenses to work. A prima facie case is made (e.g., "X murdered Y because X killed Y"), then the defense is made (e.g., "X did not murder Y because the killing was a justified self-defense").
A few paragraphs down the article says: "There are defences in law for libel. The publisher could prove the statement to be true . . . " (emphasis added). Besides, my argument is that Singh's statement can be broken into two claims: (1) that the BCA promotes certain treatments and (2) that the certain treatments are bogus. The first statement is about the BCA while the second one is about the treatments. I think that the truth of the second statement should be deemed irrelevant.
I'm not stating what British law is. I don't actually know what British law is (other than reading non-legal articles like the one cited). Thus, my argument is really a proposed defense that I think makes sense, at least in this instance. It would certainly be a lot easier for Singh to show that his statement only characterized the BCA as promoting certain treatements, as opposed to proving that the treatments are bogus. Of course, if the BCA does not promote such treatments, then Singh would not be able to use this kind of defense.
In Britain, the truth is an affirmative defense. That means that you're allowed to prove that you told the truth, but it might not be enough to save you. British law considers statements to be slander or libel if they are harmful and/or defamatory regardless of the truth of the statements.
As someone else pointed out, proving the truth of the statement is a defense. But I wonder why there is any need to prove that the treatments are "bogus" to avoid liability. The treatments are not people. There is no harm if they are exposed to "hatred or ridicule." Singh did not say "I think that these treatments are bogus, and that BCA members should be subject to hatred and ridicule for promoting such treatements."
Members of (the now-defunct) Flat Earth Society do no harm to those who believe the world to be spherical, even though such members are saying that the common belief is erroneous. Nor are such members harmed by the millions of science books printed that proclaim the world to be spherical, even though those books say that the members have erroneous beliefs.
In separating the message from the messenger, one says "I think you are mistaken, but I do hold that others should hate or ridicule you for it (I just think they should not adopt your position)." And really, unless there is evidence that the messenger was attacked, simply saying "I think you are mistaken" implies the rest.
Of course, the law in Britain may allow a sensitive messenger to recover, even when the message, not the messenger, was attacked. Britain's libel laws have previously come under attack before for "discouraging coverage of matters of major public interest."
Perhaps Singh should argue that in calling the treatments bogus, he could not have libeled the British Chiropractic Association because the BCA is not a treatment, it is an organization. Thus, Singh could only have libeled the BCA (i.e., the members of the BCA) if they did not, in fact, promote such treatements (bogus or otherwise). In other words, Singh can say that he attacked the message (the treatements), not the messenger (the BCA), and therefore cannot be found liable for libel against the BCA.
Would the British courts buy it? I have no idea (INABL). But it seems like a reasonable distinction, one that fits well into wide-spread notions of civility as well as the vigorous public discourse required for the advancement of science.
One point regarding Jammie Thomas. She actually had 2500 illegally obtained tracks on her PC, but was only prosecuted for a handful of them so the $K22.5 I often see bandied around isn't strictly accurate.
Perhaps the lists of works in these cases should be redacted so that only the works at issue are shown. The list of 2,400+ works that are not part of the suit seems like rather prejudicial material; material that could stoke the jury to inflate the awards to inappropriate levels for the materials that actually are part of the suit. Such inflation may be especially inappropriate given that, theoretically, the owners of these other works could also sue for damages.
I haven't seen any filings trying to redact exhibits listing thousands of works not at issue, but maybe someone else might be aware of such an effort.
Of course, the quickest way to keep the list of works down to only 20 or so might be to stipulate that those 20 songs were on the person's computer (based on an agreement not to introduce evidence showing other materials into evidence). Then again, based on current judicial thinking, such a stipulation is going to lead to an automatic finding of infringement (and if the recording companies are offering a settlement of $750 or less...at that point it is probably best to just take it).
Ignoring the whole Mexico v. USA issue, the story suggests that statutory damages for copyright infringement are not really well understood. These statutory damages are per work, not per instance of infringement. Thus, lets say that this artist created 100 songs. Sony mixes, re-mixes, samples, etc. the 100 songs into 1,000 different track releases and sells them to 10,000 times each to make 10,000,000 commercial copies. Well, that's still only 100 works. He could opt to argue economic damages instead; but if he opts for statutory damages, then the number of infringements doesn't matter, only the number of works.
It is a bit of an oddity in the statute. But yes, an individual file sharer who shares all 100 of his songs faces the same level of statutory damages as Sony does, even if the individual file sharer infringed only once and Sony infringed 10,000,000 times.
There are 2 RIAA trolls who are 'up each other's a**es' agreeing with each other about how unkind I have been to criticize the work of the defendant's "legal team" in SONY v. Tenenbaum on my blog and on Slashdot. . . . Hello, any moderators out there by any chance?
If you want the moderators to suppress certain commentary about the story you submitted, why not give them a hand by linking to the comments you dislike.
If you are referring in part to my comments,/. moderators can take them down a notch here, here, here, and here. I don't even think any of them are particularly trollish (although one person's honest commentary is another persons troll).
Personally, I think it is a waste to suppress a handful of comments that only have a score of 1. Who really reads/. below a threshold of 3?
...Were I to exercise a "professional courtesy" and refrain from pointing them out, I would be betraying the trust of my readers.
If you really care to understand, you need to separate the practice of law from the practice of journalism.
That's an interesting way to look at it. Although I suspect that many of your readers do not distinguish Ray Beckerman, attorney at law, from NewYorkCountryLawyer, journalist quite as distinctly as you do. Most of your readers probably see you as a lawyer/blogger, representing both practices with every commentary. Thus, when they see comments like "I would suggest there might have been a much better way of avoiding bankruptcy. It's called 'handling the case competently'", they probably don't see this as just a journalistic critique but as a professional critique too.
If Tenenbaum's lawyers had done everything perfect, what do you think his chances really would have been, assuming it went to a jury? (Yes, I am precluding the argument that if they had done everything perfect then it never would have gotten to a jury). A lot can happen in a jury deliberations; one can lose even a very well argued case with favorable facts.
I have one frequent critic who loves to disingenuously cross the line between the two in mounting his attacks; I hope you are not he.
I doubt I am your unnamed nemesis. I'm not even really critiquing you here. Instead, I'm critiquing your critique of Professor Nesson, et al. because I think you are capable of identifying and communicating errors without using inflammatory rhetoric.
Then again, I'm prone to using inflammatory adjectives such as "inconsiderate," "unproductive," "unnecessary," and "slipshod," so perhaps I am unfairly trying to hold you to a higher standard than I personally have attained.
Does it matter what I choose to call myself in this forum? For that matter, does it matter whether I am for or against the RIAA? If you're in the courtroom against an RIAA lawyer and he or she says that breathing air is good, are you going to argue that it is better to breath water?
I apologize for being ridiculous, but the point I was trying to make really is independent of whatever positions I may have (BTW, you did click on that second link, didn't you?).
You should also take a look at the first sentence in the Wikipedia entry for shill. Then smile at the paradox represented by this handle.
Interesting that the pro-RIAA people are the ones so 'offended' by my 'inconsiderate' commentary on defendant's lawyers' work.
A lawyer has an ethical obligation of competence. I take issue with the slipshod use of remarks that equate to calling a member of the profession unethical, regardless of who they are aimed at. It seems like a decent professional courtesy to avoid publicly bashing members of the profession unless it is imperative to do so.
There are lawyers out there who are clearly unethical. Doesn't it seem like a good idea to focus attacks against them rather than on those whom we disagree with or whom we think are less skilled then ourselves?
Slashdot Mirror
I think that the submitter was referring to the "counter-complaint" mentioned in the article. The article said that Magistrate Judge "Levy also ruled that the RIAA, which has sued 30,000 individuals, was not a vexatious litigant, shooting down Beckerman's counter-complaint." The article then quotes a portion of the opinion where Judge Levy says that he found "no evidence of undue vexatiousness or ill motive on" the part of the plaintiffs'. Judge Levy was discussing Ms. Lindor's request that the case be dismissed with prejudice. Thus, this request is probably the "counterclaim" mentioned in the story summary.
The summary's language is not legally precise language, but it is an understandable mistake.
I agree with you. That is a horrible situation to be in. Right now, file sharing is like a lottery where the prize is a lawsuit. Every time someone downloads a song from you it's like being given another ticket. If your luck has run out, the person downloading it is some kind of investigation service that will turn over your IP address and the download time over to the copyright owner. The risk of a lawsuit means that file sharing is not free. But it also is horrible for the public relations of an entire industry.
I have commented on statutory damages. I'm not strictly against them. If you adjust for the risk of getting caught, they start to look reasonable (e.g., if the risk of getting caught sharing one file is assumed to be 1 in 10,000, then the risk-adjusted expected damages for willfully sharing the file is only $0.075 to $15).
I think statutory damages could be reformed though. Perhaps by lowering the maximum damages for file-sharing where no money was exchanged, eliminating or reducing the minimum statutory damages, or excluding from evidence works that are not part of the suit (to avoid award inflation by the jury).
I try to be reasonable, but I'll settle for seeming to be reasonable. As for three strikes laws...I really haven't given them much thought. My limited (and probably flawed) understanding of them is that they involve blanket injunctions against using the internet after repeat copyright infringement convictions. This seems too much like an enroachment on free speech. Sure, with the present U.S. system, copyright infringers may end up owing thousands of dollars for file sharing, but at least they can still argue, in worldwide fora, that justice was miscarried.
This wasn't exactly a random person. This was the defendant's daughter, who brought a computer into the defendant's home at the time of the alleged infringement. It sucks being stuck in a lawsuit because you don't remember that your daughter was using your internet connection. But unreasonable for the plaintiff to continue the lawsuit when crucial facts have not been discovered...I'm not so sure.
To be clear, by "just" I meant that the several year delay was due to the several years it took to identify the right defendant (it just took several years before...). I did not mean that the length of time was insignificant (it took just several years before...). Thank you for pointing out the potential for miscommunication.
According to the decision, "plaintiffs' counsel requested leave to file this motion, having learned less than one month earlier , at the deposition of Yanick Raymond-Wright, that defendant's daughter had brought a desktop computer into her mother's home and had connected it to the Internet in the summer of 2004" (emphasis added). The decision goes on to day that "[d]efendant does not suggest that plaintiffs could have discovered this information sooner, as neither defendant nor the other deponents in this case recalled Ms. Raymond-Wright's 2004 visit or the presence of her computer in her mother's home."
It sounds like they sued Ms. Lindor because of alleged infringement activities that were traced to her internet account. Then they kept the suit open while trying to find out who might have used her account. It looks like it just took several years before they could identify the right defendant. It also looks like the defendant's incomplete testimony is one of the reasons why the plaintiffs did not identify the right defendant earlier.
The Magistrate Judge probably reviewed the evidence presented pretty closely and with an open mind. The opinion seems well-reasoned and balanced on its face. I personally would not second-guess the opinion without taking some time to review the evidence at least as closely.
Judge Trager did act on the plaintiff and defendant motions quickly. In December he referred the motions to Magistrate Judge Levy. You don't think that saying "my decision is . . . probably whatever this guy decides" counts as a decision?
Well, not that independent. The decision was the first link in the article. Instead of reading the article, I just read the decision. When I saw your post, I went back to it and searched for vexatious to see if you what you said was accurate.
It seems like a decent opinion. The decision to levy sanctions should not be taken lightly. Neither plaintiffs nor defendants should be discouraged from exercising their legal rights.
The decision said that, "[a]ccording to plaintiffs . . . counsel 'intentionally provided false information, attempted to misdirect Plaintiffs as to relevant facts and events, and concealed critical information and evidence regarding the infringement at issue,' unreasonably and vexatiously multiplying this litigation and severely prejudicing plaintiffs' ability to learn the critical facts." The complaint sought monetary sanctions under 28 U.S.C. Sec. 1927, which only allows for sanctions if the accused attorney "multiplies the proceedings in any case unreasonably and vexatiously ."
Excellent choice! It's a good book for introducing students to postmodernism and makes for a nice study of humor in fantasy literature.
As fun as Ender's Game is...I disagree. It is certainly well-written and ingenuitive, but strikes me as mostly an action-oriented adventure with little to challenge the reader. Xenocide has more going for it in the way of moral dilemas, the demands for survival, the metaphysical, and the alien (obligatory xkcd ref). Alternatively, Shadow Puppets has much to say about how nations exercise power and how alliances form. Unfortunately, both works can be a bit confusing without having read their predecessors.
Haven't read it yet...but perhaps I should!
This seems to be an overreaction to a request for ideas on what should be part of a sci-fi/fantasy literature course. Students who just want to read sci-fi/fantasy for fun probably do not have to take this course. They can take a regular English course and then read sci-fi/fantasy for fun on the side. But students who take this course should be challenged in some way.
Perhaps the course should expose them to sci-fi/fantasy literature not circulating among the students' circles of friends. Perhaps they should be able to identify motifs or narrative structures that help define the genres. Or perhaps they should be able to relate the materials to the real world in a way that they didn't think about before.
But students taking such a course shouldn't leave it without developing something more than the ability to say "I like fun stories." If that's it, then they haven't been challenged and might as well have had the class period off.
Can't disagree with you there. Nineteen Eighty-Four wasn't on my original list, but it should have been. Too many people talk about 1984 without having read it and given it critical thought. It is highly-relevant today on several levels, but many misunderstand or oversimply its relevancy.
I agree completely about looking beyond Asimov and company. I can't vouch for the Campbell (never read anything of his before). But here is my list of top picks.
Mary Shelly's Frankenstein is an excellent bit of classical literature that deals with topics such as hubris, justice, and divinity. It is also an enjoyable, easy read.
The War of the Worlds is notable for being written in a timeless style. Its parallels to the imperialism of the British Empire is excellent fodder for in depth student research.
Good Omens nicely turns Christian Apocalypse doctrine on its head while providing insights into the battles between bureaucracies and nation-states. May be controversial because of its connection to religious doctrine, but one of the more entertaining pieces on this list.
Gulliver's Travels, which is excellent satire, even if some of its messages are a bit heavy-handed. A little harder to read than some of the others, but an excellent piece nonetheless. Plus, there are so many common memes that derive from these tales. The various parts are easily read separately. If you only assign part of it, I would keep A Voyage to Lilliput and A Voyage to Houyhnhnms.
The Lottery is a must-read. You should find out if many of your students have been exposed to this from other literature courses. If not, then go for it! It has so many lessons about peer-pressure, hypocrisy, institutional momentum, and more. Plus, it is the exemplar "twist ending."
Why is there such a pervasive belief (or use of rhetoric that claims) that people who hold different positions or have different beliefs are necessarily stupid or inferior? Can't intelligent, reasonable people reach different conclusions of the world, even given the same evidence?
Aristotle had beliefs about the world that we know were flawed. Newton's beliefs were incomplete (and he was a bad investor to boot). Yet, I would not dream of calling either men stupid.
After several hundreds of years have passed, perhaps the level of copyright will have looked like a failed legal experiment (along with The Ordeals). Or, maybe copyright holders will have more control over their works, making their current level of control appear as weak in comparison (like looking back today at how women could not really own property in the past).
Discussion and debate about rights and responsibilities is healthy and an important part of the development of law. But perhaps we should show some civility to each other by recognizing that great minds do not think alike. Intelligent, reasonable people can view the world in different ways.
I do not think it necessary to say preface everything with "someday I may be proven wrong . . . " I just suggest avoiding ad hominem attacks except in the most rare cases where no intelligent, reasonable person can hold certain, highly-harmful beliefs.
Sure you could tell children that. It makes sense to discuss fair use in a context where it is most applicable (e.g., when teaching about music composition or research paper drafting). But it is just a distraction when trying to discourage non-creative, infringing uses of copyrighted works (software piracy, P2P sharing of ripped music tracks, etc.).
Fair use is not as simple as you might think. When a court is faced with a fair use defense, all four factors of fair use have to be considered:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
To make matters worse, fair use is considered a defense to copyright infringement (first developed in the courts and then codified by Congress), not a right. Thus, if you are doing something that might be considered a fair use in court, the copyright holder can sue and you have the burden of proving. The copyright holder doesn't have to first prove that your use was not fair.
Additionally, trying to give "a few simple examples" is not as trivial as you think. A short piece of a song, sampled by a music artist and distributed commercially, might not be a fair use. A screenshot of a game, plastered on the cover of a third-party rip-off game, could be infringement too.
But even this easy solution can be problematic. Each side in a trial typically has a certain amount of time in which to make their case. If jurors pepper one side with questions, that side may be put at a disadvantage. Jurors might inadvertently ask questions that would require the introduction of evidence specifically excluded from the trial. It would certainly look bad to a juror to have one side's lawyer object to the juror's innocent question.
I'm not saying that our current system is perfect. I'm just saying that it might not be easy to change the system without introducing new problems.
Whether jurors are entitled to rely on previous education and experience is immaterial, they are going to bring with them their existing knowledge and perspective of the world. Of course, this can cause problems (e.g., if the 10th grade teacher did a poor job teaching bookkeeping, or if the juror did not actually learn or has forgotten the material).
The risk that jurors might be biased is supposed to be mitigated by voir dire, which gives the lawyers a chance to ask questions. For example, a lawyer might ask "have you studied bookkeeping before? this case involves accounting nuances that may be more advanced than what you have studied; would you be able to listen attentively, even when basic accounting concepts are discussed, so that you fully understand the facts, arguments, and issues?" If a juror says "I don't think I'd pay much attention to the basic stuff," then that juror might be stricken to avoid having someone on the jury panel who, because of pre-existing education, might have ignored something important.
I think that judges encourage jurors to put aside their pre-existing notions too. And, for what it is worth, I suspect most jurors try to keep an open mind and do the best job possible. Independent investigation by jurors, for better or worse, is a symptom of jurors trying to do a good job.
The article made a similar point and even went so far as to argue that the more information available to a jury, the better. However, there is some sense in our system and there are valid reasons for discouraging independent investigation by jurors.
When one side presents information to jurors in the courtroom, the other side has the opportunity to challenge that information. Contradictory information can be provided, the credibility of the source can be challenged, or its relevance to the case can be questioned.
Information that jurors seek out on their own cannot be challenged. How can it be? If the jurors seek outside information, then the parties won't know what information they obtained, where the obtained it, and (without enough time) how to challenge the information. Is it fair for a party to lose based on evidence that the party never was given an opportunity to challenge?
Our jury system is effectively an adversarial system. The two sides present a case while the jury sits back and absorbs the facts and arguments. If jurors are systemically undermining this approach to law, it might make sense to adopt elements of an inquisitorial system. Jurors could conduct their own research provided they made clear what additional information they uncover and give the parties the opportunity to challenge that information.
But does that mean that "false or unjustified" can include truth? Think about it. Any bit of knowledge can be true, false, or possible (that is, it could be true, or it could be false, but its truthiness is unknown. Thus, a statement of something that is possible (e.g., "X is actually an alien from outer space sent here to spy on humanity") may be defamatory if it is unjustified (i.e., there is no evidence to sustain the allegation). The interesting question is whether one is liable if the statement was unjustified when said, but proven to be true (and thus justifiable in hindsight) in court.
Here is some pseudo-code to help you out in understanding how I view the article's characterization of British libel law (sorry that it is all left-indented...I don't know how to get /. to embed a pseudocode-snippet properly):
if (exposes(publication(s), p, TO_HATE) || exposes(publication(s), p, TO_RIDICULE) ||
causes(publication(s), p, TO_BE_SHUNNED) ||
estimation_of(publication(s), p, RIGHT_THINKING) < estimation_of(NULL, p, RIGHT_THINKING)) ||
disparages(public(s), work_of(p))) {
if (is_true(s) || is_fair_comment(s) || is_protected_by_privilege(s)) {
libel = false;
} else
libel = true;
}
} else {
libel = false;
}
This is a typical way for affirmative defenses to work. A prima facie case is made (e.g., "X murdered Y because X killed Y"), then the defense is made (e.g., "X did not murder Y because the killing was a justified self-defense").
A few paragraphs down the article says: "There are defences in law for libel. The publisher could prove the statement to be true . . . " (emphasis added). Besides, my argument is that Singh's statement can be broken into two claims: (1) that the BCA promotes certain treatments and (2) that the certain treatments are bogus. The first statement is about the BCA while the second one is about the treatments. I think that the truth of the second statement should be deemed irrelevant.
I'm not stating what British law is. I don't actually know what British law is (other than reading non-legal articles like the one cited). Thus, my argument is really a proposed defense that I think makes sense, at least in this instance. It would certainly be a lot easier for Singh to show that his statement only characterized the BCA as promoting certain treatements, as opposed to proving that the treatments are bogus. Of course, if the BCA does not promote such treatments, then Singh would not be able to use this kind of defense.
As someone else pointed out, proving the truth of the statement is a defense. But I wonder why there is any need to prove that the treatments are "bogus" to avoid liability. The treatments are not people. There is no harm if they are exposed to "hatred or ridicule." Singh did not say "I think that these treatments are bogus, and that BCA members should be subject to hatred and ridicule for promoting such treatements."
Members of (the now-defunct) Flat Earth Society do no harm to those who believe the world to be spherical, even though such members are saying that the common belief is erroneous. Nor are such members harmed by the millions of science books printed that proclaim the world to be spherical, even though those books say that the members have erroneous beliefs.
In separating the message from the messenger, one says "I think you are mistaken, but I do hold that others should hate or ridicule you for it (I just think they should not adopt your position)." And really, unless there is evidence that the messenger was attacked, simply saying "I think you are mistaken" implies the rest.
Of course, the law in Britain may allow a sensitive messenger to recover, even when the message, not the messenger, was attacked. Britain's libel laws have previously come under attack before for "discouraging coverage of matters of major public interest."
Perhaps Singh should argue that in calling the treatments bogus, he could not have libeled the British Chiropractic Association because the BCA is not a treatment, it is an organization. Thus, Singh could only have libeled the BCA (i.e., the members of the BCA) if they did not, in fact, promote such treatements (bogus or otherwise). In other words, Singh can say that he attacked the message (the treatements), not the messenger (the BCA), and therefore cannot be found liable for libel against the BCA.
Would the British courts buy it? I have no idea (INABL). But it seems like a reasonable distinction, one that fits well into wide-spread notions of civility as well as the vigorous public discourse required for the advancement of science.
Perhaps the lists of works in these cases should be redacted so that only the works at issue are shown. The list of 2,400+ works that are not part of the suit seems like rather prejudicial material; material that could stoke the jury to inflate the awards to inappropriate levels for the materials that actually are part of the suit. Such inflation may be especially inappropriate given that, theoretically, the owners of these other works could also sue for damages.
I haven't seen any filings trying to redact exhibits listing thousands of works not at issue, but maybe someone else might be aware of such an effort.
Of course, the quickest way to keep the list of works down to only 20 or so might be to stipulate that those 20 songs were on the person's computer (based on an agreement not to introduce evidence showing other materials into evidence). Then again, based on current judicial thinking, such a stipulation is going to lead to an automatic finding of infringement (and if the recording companies are offering a settlement of $750 or less...at that point it is probably best to just take it).
Ignoring the whole Mexico v. USA issue, the story suggests that statutory damages for copyright infringement are not really well understood. These statutory damages are per work , not per instance of infringement. Thus, lets say that this artist created 100 songs. Sony mixes, re-mixes, samples, etc. the 100 songs into 1,000 different track releases and sells them to 10,000 times each to make 10,000,000 commercial copies. Well, that's still only 100 works. He could opt to argue economic damages instead; but if he opts for statutory damages, then the number of infringements doesn't matter, only the number of works.
It is a bit of an oddity in the statute. But yes, an individual file sharer who shares all 100 of his songs faces the same level of statutory damages as Sony does, even if the individual file sharer infringed only once and Sony infringed 10,000,000 times.
If you want the moderators to suppress certain commentary about the story you submitted, why not give them a hand by linking to the comments you dislike.
If you are referring in part to my comments, /. moderators can take them down a notch here, here, here, and here. I don't even think any of them are particularly trollish (although one person's honest commentary is another persons troll).
Personally, I think it is a waste to suppress a handful of comments that only have a score of 1. Who really reads /. below a threshold of 3?
That's an interesting way to look at it. Although I suspect that many of your readers do not distinguish Ray Beckerman, attorney at law, from NewYorkCountryLawyer, journalist quite as distinctly as you do. Most of your readers probably see you as a lawyer/blogger, representing both practices with every commentary. Thus, when they see comments like "I would suggest there might have been a much better way of avoiding bankruptcy. It's called 'handling the case competently'", they probably don't see this as just a journalistic critique but as a professional critique too.
If Tenenbaum's lawyers had done everything perfect, what do you think his chances really would have been, assuming it went to a jury? (Yes, I am precluding the argument that if they had done everything perfect then it never would have gotten to a jury). A lot can happen in a jury deliberations; one can lose even a very well argued case with favorable facts.
I doubt I am your unnamed nemesis. I'm not even really critiquing you here. Instead, I'm critiquing your critique of Professor Nesson, et al. because I think you are capable of identifying and communicating errors without using inflammatory rhetoric.
Then again, I'm prone to using inflammatory adjectives such as "inconsiderate," "unproductive," "unnecessary," and "slipshod," so perhaps I am unfairly trying to hold you to a higher standard than I personally have attained.
Does it matter what I choose to call myself in this forum? For that matter, does it matter whether I am for or against the RIAA? If you're in the courtroom against an RIAA lawyer and he or she says that breathing air is good, are you going to argue that it is better to breath water?
I apologize for being ridiculous, but the point I was trying to make really is independent of whatever positions I may have (BTW, you did click on that second link, didn't you?).
You should also take a look at the first sentence in the Wikipedia entry for shill. Then smile at the paradox represented by this handle.
A lawyer has an ethical obligation of competence. I take issue with the slipshod use of remarks that equate to calling a member of the profession unethical, regardless of who they are aimed at. It seems like a decent professional courtesy to avoid publicly bashing members of the profession unless it is imperative to do so.
There are lawyers out there who are clearly unethical. Doesn't it seem like a good idea to focus attacks against them rather than on those whom we disagree with or whom we think are less skilled then ourselves?