What you prepose (a test administered as a minimal bar to voting) is preciesly the tactic used by the southern democratic machine to keep blacks out of the voting booths after the civil war. It is for that reason that the 14th amendment and its children the civil rights acts were passed.
I know what you mean (I've spent some time in Chicago and Des Moines, both towns with great local music communities). But, there's very little difference to a music exec betwen "this will sell" and "this sounds great" when it's an unknown band. Yes.. the big name groups can pump out shit and it will sell - groups looking for their first big break need some kind of sound.
Even in the worst examples of an engineered performer - N-sync or Spice Girls - I may never buy one of their albums - but there are people out there who genuinely enjoy it. There is a difficult gap to bridge between "most people like to have music fed TO them" and "fuck the labels." If you want to end them, you need to provide a replacement that works for Marge the cog in accounting that buys 3 cds a year, and her 20 million clones.
The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*. That's their fuction as "taste filters." Essentially - most people don't want to sort through a sack of crap to find one nugget of gold. Music labels do that job of sorting for you. A site which allows music authors and performers to upload - but allows users to do the tagging and rating - would be a nice replacement for that last (poorly accomplished) bit of work.
Of course, you have to convice artists to put up with tags like "sell-out" "shit sucker" and the even more painful "uninspired."
I'm sorry, but where the fuck have you been for the last 15 years? The judge essentially can't rule against the RIAA based on "not liable in principle" because the RIAA has written all the relevant laws and had their government lapdogs pass them. At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. The only place the judge can rule against them is in the area of "you can't prove it". Angry, but not unreasonable.
However, it is incorrect to assign blame for the wholeness of the problem on congress (really the last three congresses before the current one - which has just refused to correct earlier errors). You need to also spread some hate on the judges that have accepted a "making available" argument in leiu of actual proof of distribution. That has *literally* made it questionably legal to run ITunes with the built in content sharing app (on by default).
Even the much publicized recent $200K+ judgement they won, IF they could collect it (good luck with that), probably wouldn't even come close to covering their overall expenses so far. I'm still convinced that this is a money MAKING operation. They are pushing enough cases through that document reuse is becoming more viable. They're also trying to stack up precedent to make these cases roll through quickly. From the RIAA's persepctive - all they need is a break-even to punish the "bad actors." From the law firm's persepctive - they're printing their own money with these cases. File sharing is unlikely to go away - so making this into a routine 1-to-2 thousand dollar intake for every two or three letters they send out with an occasionaly 20-100K outlay for a day in court to keep the process rolling is good bussiness - at least for the lawyers.
Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant. There are some documents that need to be filed with the court that are not supposed to contain arguments. It's best if you use terms that are not SO argumentative in their nature that they can be used in all court filings. From a persuasiveness standpoint, they're making the decision that the persuasive power of using a slightly skewed term everywhere is better than using a heavily slanted term in some places and a different term elsewhere. Besides, in court, you can use inflection to mame the two phrases sound like they're the same thing anyway - or define a media distribution system AS a tool of theft. Prybar, check, lockpicks, check, 9mm, check, Kazaa, check.:/
Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess. Again.. No one has "gotten away" with anything yet. The RIAA will actually have to mount a case - that's all. Since the defendant has elected not to appear in court he dosen't get to mount a defense. The RIAA will be able to put their case before a jury and ask a group of people to agree with them.
More specfically, let's quote TFA
Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant. Here RIAA, here is the roadmap of evidence - show me an IP, show me that this IP was leased to the defendant at the time someone was sharing these files from that IP... this is the minimal (and questionably reliable) level of evidence the RIAA has used in so many of its other cases. Bearing in mind that there was no opposing counsel to argue that any of RIAA's theories were sloppy or unproven - they just didn't present a case. . . but they still can. The case wasn't dissmissed. It's NOT over.
Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p? I'm not sure where you get the idea that "preponderance of the evidence" and "by looking at the evidence and going where my gutt tells me" aren't effectively the exact same thing. . . the judge can't peel back the layers of time to look at what really happened to see if the plaintiff has found 51% of the proof available.. he looks at what's been presented and then issues a ruling based on what he *feels* has been proven. That's why there's an appeal system - because judges often *feel* in ridiculous or plainly erroneous ways.
Now, the second question - has he done something Illegal - goes to the root of what the article is about. Since this is a question of law ruling - not a ruling on the facts - the judge is addressing EXACTLY that point. The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position.
Now.. I hear you saying - but that's what I mean by "my gut" - the judge can't just look at the account name - see a guy named jeff - and say "you're guilty." The reason that is the case is that this is NOT the final disposition of the trial. This was RIAA requesting that the trial be ended now in their favor. A judgement before the jury reaches a conclusion on the evidence. In federal court there must be *no* relevant questions of fact left to be decided to support their ruling. This just forces RIAA to go through more of the trial - possibly even allowing a jury to hear the evidence and rule on their gutt. (Imagine, implementing the system our founder's evisioned!?)
And yes, your "feeling in your gutt" would be applicable if you were a juror and had listend to all the evidence - because it's a civil case, and the purden of proof is preponderance of the evidence.
Okay.. so I tried to resist the urge to post this.. but I failed.
HOLY COW THAT IS AWESOME!!
I'm already a netflix subscriber, and I love the video on demand features - but I hate watching these movies on my computer screen with lo-fi stereo speakers, when I'm sitting in the same room as my widescreen HD TV and Dolby Stereo system. I end up using it to watch mostly documentaries - since I don't care so much if I hear "This movie is not yet rated" in surround sound.
What I find so please about this concept is the idea of a company I already give money to, turning around and handing me new services for no extra charge.. that really leverage all the high priced equipment I've already bought. Dude!
Is it just me or does it seem like the effort people are putting into 'making sure they get paid' actually much greater than the effor they are putting into 'making something to get paid for'. I'm sure many people spend more time/money trying to figure out if they can be sued than they do actually making a product. I guess that depends on who you define "they" as. If you mean the employees of RIAA, then no - they put very little effort into constructing these arguments or persuing these lawsuits. If, on the other hand, you mean RIAA's series of law firms, and the dozens of associates racking up hours trying to find ways to win money on RIAA's claim - as plaintiff's lawyers, much of their income comes after a win, they evaluate the options, pick the arguments that they think most likely to cause a rain of dollar bills, and try like hell to win the case.
So the RIAA employee's do very little, those working on the RIAA's behalf do quite alot.. but then.. that's their job.
For those who don't want to take the time to read the "iBrief" (wtf?), it says that AOL's usenet service should not have qualified AOL under the safe harbor provisions. However, the article uses a very narrow interpretation of the definition of "ISP": a party that offers transmission, routing, or provision of connections for digital online communications, between or among points specified by a user, of material of the user's choosing. The article says that the user does not control where the usenet post goes after they make it, so the user has not specified a point of transmission, so with respect to usenet, AOL does not qualify as an ISP. The article is not defining an "ISP" it simply quotes the language of 17 U.S.C. 512(a), (a)(2), (a)(4)'s definition of a "Service Provider." The definition given in the case brief is THE definition at law for a Service Provider in the context of the safe harbor defense.
Whether you agree with the technical correctness of that definition is immaterial to how a judge must apply the law.
The RIAA's "making available" argument is novel (meaning new, unproven, untested, not reliable, subject to overturn on appeal). If she had setteled, she would HAVE to pay some damages. She went to trial hoping the judge would toss the "making available" argument.. she completed the trial in the hopes that an appelate court will overturn this error.
What is apparently clear (as opposed to just clear - it looks obvious by may not be) is that she ran kazaa and had 24 songs in her share folder. This is not a violation of the copyright law. If she gave those songs to a friend while retaining a copy.. that might violate copyright law. If she sold the same song to her friend, that would violate copyright law.
What will happen now - 1) she will request that the court repair its error. 2) the court will refuse. 3) she will appeal the court's LEGAL decision that "making available" violates copyright law (without evidence of actual transfer or sale). 4) the case WILL be reviewed by an appelate court, and MAY be overturned.
After that the case may get appealed up the chain to the SCOTUS. But anything past the move to appeal is conjecture.
This woman very well may prevail in the end, she may not have to pay anything at all.
If you find a criminal defendant not guilty.. as a jury.. there's almost nothing the court can do to remedy your decision. They tell you the law, they can try to limit your choices.. but jury nullification is the process of taking your power as a jury to IGNORE that.
Ultimately it's up to you to interpret that law, in the closed little room, with 11 other people who just want to go home.
All-white jury nullification was the reason that 42 USC sec. 1983 was passed - it grants the victim of a crime which impignes upon their constitutional rights "under color of state law" grounds to bring civil action in federal court. There are also federal criminal statutes designed to "fix" that issue.
But yes, that is an astute observation that jury nullification has a mixed history in the U.S.
In Criminal cases, the jury is the sole arbiter of the facts and law. They read the law as given in jury instrcutions as given by the judge, apply them to the facts, and come up with the verdict. Abesnt evidence of serious corruption within the jury room - that's the end of the road and the Prosecution can't bring the case again or ask the judge to overturn the jury (as opposed to the defense who can ask the judge to toss out a guilty verdict.
In a CIVIL case like this, the Judge is the sole arbiter of the law, the jury decides the facts. If the Jury tosses the law out the window and makes a decision which is contrary to law -- the plaintiff may enter a motion for Judgement as a Matter of Law (formerly: Judgment Notwithstanding the Verdict.) [this is a summary, post trial JMOL is actually a renewed JMOL, if you want to read up on it.. wikipedia is a good source: here.]
Essentially, since the judge has determined that "making available" is a sufficient act to violate a copyright - the question for the jury was "did the defendant make songs available for download." Evidence at trial linked her to the share folder - the kazaa username was the same that the defendant uses on myspace, and a small collection of other sites. She also wiped her drive / possibly handed over a false drive durring discovery (trying to hold back evidence == bad in the eyes of the court - as attempting to flee is evidence of guilt, attempting to hide or destroy evidence is evidence of a guilt.) The judge must then ask (in response to the JMOL) could a reasonable juror reach the conclusion that it is more likely the defendant did NOT make those files available for download? If no - then the JMOL is granted - the jury finding gets tossed, and they move on to determining the damages.
Jury Nulification is NOT for the win in RIAA cases.
"Telling a judge about how some other judge ruled, but leaving out the fact that the case was overturned is perfectly acceptable."
Wrong. Very wrong. Colorado rule is the same as everyone else:
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Colorado Rules of Professional Conduct Rule 3.3(a)(3)
Seriously - calling for the opponents claims to be dismissed isn't exciting - it's a damn near universal procedural step in the progress of a civil suit. If you don't file these motions in a timely manner than you lose the ability to raise them again later - say - after Epic fails to prove it's factual contentions.
I'm tired and I'll get the details wrong if I try - but a nice similee would be - "coder debugs code." Yah - Okay.. and?
Tearing appart the opponents claims line by line is - again - sort of what lawyers do! They don't get paid to show up at court and talk - almost all their money is earned at a desk covered in duplicate copies of documents and evidence files making notes and trying to find places where the facts don't match up with the required elements of the case.
Okay - elements is the wrong term - I'm sloppy and tired and I've focused on crim law for more than 6 months. Sue me:D.
Police no longer actually have to read you your miranda rights, they just have to get you to make some form of indication of not wishing to exercise them. It can be as simple as you talking to them without asking a question. No there was no change to the law to allow this its just what the courts let them get away with nowadays.
You're wrong there. There are three major sources of law - Legislation, Administrative law (executive), and court made law. Some fine examples of court made law include - Habeas Corpus, the entire body of "common-law," and nearly every form of equity solution available in court.
Oh yeah, the requirement for a recitation of the Miranda Rights are ALSO a creation of the court. Since the right to a recitation of the so-called "miranda rights" came out of a court case (see: Wikipedia.
Recently there was a bit of a buzz on campus after word got out that some of our grads just starting at the top law firms were breaking the previous earning caps, and making as much as 135K a year in their first year. After hiring bonus, one of our kids will clear 200K by next June.
Unless Russian law is different. . . but yes, it seems like the fellow got confused.
More interesting question: what about all the trademark breaches that are attendant to the copyright issues: i.e. using band names for section headings, use of label names without permission, etc.
Slashdot Mirror
-GiH
What you prepose (a test administered as a minimal bar to voting) is preciesly the tactic used by the southern democratic machine to keep blacks out of the voting booths after the civil war. It is for that reason that the 14th amendment and its children the civil rights acts were passed.
-GiH
Even in the worst examples of an engineered performer - N-sync or Spice Girls - I may never buy one of their albums - but there are people out there who genuinely enjoy it. There is a difficult gap to bridge between "most people like to have music fed TO them" and "fuck the labels." If you want to end them, you need to provide a replacement that works for Marge the cog in accounting that buys 3 cds a year, and her 20 million clones.
-GiH
Of course, you have to convice artists to put up with tags like "sell-out" "shit sucker" and the even more painful "uninspired."
-GiH
However, it is incorrect to assign blame for the wholeness of the problem on congress (really the last three congresses before the current one - which has just refused to correct earlier errors). You need to also spread some hate on the judges that have accepted a "making available" argument in leiu of actual proof of distribution. That has *literally* made it questionably legal to run ITunes with the built in content sharing app (on by default).
-GiH
-GiH
-GiH
More specfically, let's quote TFA Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant. Here RIAA, here is the roadmap of evidence - show me an IP, show me that this IP was leased to the defendant at the time someone was sharing these files from that IP... this is the minimal (and questionably reliable) level of evidence the RIAA has used in so many of its other cases. Bearing in mind that there was no opposing counsel to argue that any of RIAA's theories were sloppy or unproven - they just didn't present a case. . . but they still can. The case wasn't dissmissed. It's NOT over.
-GiH
Now, the second question - has he done something Illegal - goes to the root of what the article is about. Since this is a question of law ruling - not a ruling on the facts - the judge is addressing EXACTLY that point. The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position.
Now.. I hear you saying - but that's what I mean by "my gut" - the judge can't just look at the account name - see a guy named jeff - and say "you're guilty." The reason that is the case is that this is NOT the final disposition of the trial. This was RIAA requesting that the trial be ended now in their favor. A judgement before the jury reaches a conclusion on the evidence. In federal court there must be *no* relevant questions of fact left to be decided to support their ruling. This just forces RIAA to go through more of the trial - possibly even allowing a jury to hear the evidence and rule on their gutt. (Imagine, implementing the system our founder's evisioned!?)
And yes, your "feeling in your gutt" would be applicable if you were a juror and had listend to all the evidence - because it's a civil case, and the purden of proof is preponderance of the evidence.
-GiH
HOLY COW THAT IS AWESOME!!
I'm already a netflix subscriber, and I love the video on demand features - but I hate watching these movies on my computer screen with lo-fi stereo speakers, when I'm sitting in the same room as my widescreen HD TV and Dolby Stereo system. I end up using it to watch mostly documentaries - since I don't care so much if I hear "This movie is not yet rated" in surround sound.
What I find so please about this concept is the idea of a company I already give money to, turning around and handing me new services for no extra charge.. that really leverage all the high priced equipment I've already bought. Dude!
-GiH
Okay, sorry for the fanboism.
So the RIAA employee's do very little, those working on the RIAA's behalf do quite alot.. but then.. that's their job.
-GiH
Whether you agree with the technical correctness of that definition is immaterial to how a judge must apply the law.
-GiH
The RIAA's "making available" argument is novel (meaning new, unproven, untested, not reliable, subject to overturn on appeal). If she had setteled, she would HAVE to pay some damages. She went to trial hoping the judge would toss the "making available" argument.. she completed the trial in the hopes that an appelate court will overturn this error.
What is apparently clear (as opposed to just clear - it looks obvious by may not be) is that she ran kazaa and had 24 songs in her share folder. This is not a violation of the copyright law. If she gave those songs to a friend while retaining a copy.. that might violate copyright law. If she sold the same song to her friend, that would violate copyright law.
What will happen now - 1) she will request that the court repair its error. 2) the court will refuse. 3) she will appeal the court's LEGAL decision that "making available" violates copyright law (without evidence of actual transfer or sale). 4) the case WILL be reviewed by an appelate court, and MAY be overturned.
After that the case may get appealed up the chain to the SCOTUS. But anything past the move to appeal is conjecture.
This woman very well may prevail in the end, she may not have to pay anything at all.
-GiH
-S
If you find a criminal defendant not guilty.. as a jury.. there's almost nothing the court can do to remedy your decision. They tell you the law, they can try to limit your choices.. but jury nullification is the process of taking your power as a jury to IGNORE that.
Ultimately it's up to you to interpret that law, in the closed little room, with 11 other people who just want to go home.
All-white jury nullification was the reason that 42 USC sec. 1983 was passed - it grants the victim of a crime which impignes upon their constitutional rights "under color of state law" grounds to bring civil action in federal court. There are also federal criminal statutes designed to "fix" that issue.
But yes, that is an astute observation that jury nullification has a mixed history in the U.S.
-GiH
Jurry nullification dosen't work in civil cases.
In Criminal cases, the jury is the sole arbiter of the facts and law. They read the law as given in jury instrcutions as given by the judge, apply them to the facts, and come up with the verdict. Abesnt evidence of serious corruption within the jury room - that's the end of the road and the Prosecution can't bring the case again or ask the judge to overturn the jury (as opposed to the defense who can ask the judge to toss out a guilty verdict.
In a CIVIL case like this, the Judge is the sole arbiter of the law, the jury decides the facts. If the Jury tosses the law out the window and makes a decision which is contrary to law -- the plaintiff may enter a motion for Judgement as a Matter of Law (formerly: Judgment Notwithstanding the Verdict.) [this is a summary, post trial JMOL is actually a renewed JMOL, if you want to read up on it.. wikipedia is a good source: here.]
Essentially, since the judge has determined that "making available" is a sufficient act to violate a copyright - the question for the jury was "did the defendant make songs available for download." Evidence at trial linked her to the share folder - the kazaa username was the same that the defendant uses on myspace, and a small collection of other sites. She also wiped her drive / possibly handed over a false drive durring discovery (trying to hold back evidence == bad in the eyes of the court - as attempting to flee is evidence of guilt, attempting to hide or destroy evidence is evidence of a guilt.) The judge must then ask (in response to the JMOL) could a reasonable juror reach the conclusion that it is more likely the defendant did NOT make those files available for download? If no - then the JMOL is granted - the jury finding gets tossed, and they move on to determining the damages.
Jury Nulification is NOT for the win in RIAA cases.
-GiH
"Telling a judge about how some other judge ruled, but leaving out the fact that the case was overturned is perfectly acceptable."
Wrong. Very wrong. Colorado rule is the same as everyone else:
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Colorado Rules of Professional Conduct Rule 3.3(a)(3)
-GiH
It must be nice to be their lawyers though... practically printing their own.
-GiH
They have a profesional responsabiliy (as lawyers) to inform the court when an authority they cited in support of their legal case gets overturned.
-GiH
I'm tired and I'll get the details wrong if I try - but a nice similee would be - "coder debugs code."
Yah - Okay.. and?
Tearing appart the opponents claims line by line is - again - sort of what lawyers do! They don't get paid to show up at court and talk - almost all their money is earned at a desk covered in duplicate copies of documents and evidence files making notes and trying to find places where the facts don't match up with the required elements of the case.
:D.
Okay - elements is the wrong term - I'm sloppy and tired and I've focused on crim law for more than 6 months. Sue me
-GiH
You're wrong there. There are three major sources of law - Legislation, Administrative law (executive), and court made law. Some fine examples of court made law include - Habeas Corpus, the entire body of "common-law," and nearly every form of equity solution available in court.
Oh yeah, the requirement for a recitation of the Miranda Rights are ALSO a creation of the court. Since the right to a recitation of the so-called "miranda rights" came out of a court case (see: Wikipedia.
-GiH
GIH is not a lawyer. GIH is a law student.
Uhm.. it's what second year law students are called.. (1L, 2L, 3L - then you graduate).
But I doubt that's what he was going for.
-GiH
$300,000 is a bit high... but your math is otherwise right on.
-GiH
To answer this question:
Recently there was a bit of a buzz on campus after word got out that some of our grads just starting at the top law firms were breaking the previous earning caps, and making as much as 135K a year in their first year. After hiring bonus, one of our kids will clear 200K by next June.
Er.. that is to say.. it goes to the lawyers.
-GiH
Unless Russian law is different. . . but yes, it seems like the fellow got confused.
More interesting question: what about all the trademark breaches that are attendant to the copyright issues: i.e. using band names for section headings, use of label names without permission, etc.
-GiH