I have no disagreement with any of this. I think the upshot (which I never really brought home in what I wrote) is that prosecutors have some discretion, but it's limited by a countervailing obligation to enforce the laws that were actually passed. So, yes, they do have some responsibility for the charges they bring, but it's responsibility they share with the legislature.
In Swartz's case, he wasn't doing anything strictly illegal
No, he was. As has been quite widely discussed here and elsewhere he was accused of violating the Computer Fraud and Abuse Act and, from what I've read, he probably was actually "guilty". And, yes, 35 years is the actual punishment. Sure, the prosecutors have discretion in prosecuting crimes, but I continue to be amazed that all of our abuse is heaped upon the prosecutors for trying to enforce a law THAT CONGRESS ACTUALLY PASSED. Don't get me wrong, I think that 35 years (or, really, any punishment at all) for what Swartz did is nuts.And I think that there is an under-appreciated moral dimension to the prosecution decisions that US attorneys make. But then again, do we really want a system where the prosecutors feel free to enforce a law or not based on their own preferences? Isn't this what a legislature is for? Why are we focusing on the prosecutors who tried to enforce it instead of the actual people who passed and have the power to fix the law?
A small point: TFS says that both rulings are likely to be appealed, but the Aereo decision was actually from the 2nd Circuit Court of Appeals. So, unless the Supreme Court takes the case next term (extremely unlikely) that decision is final.
Well, I know that a "pop-up store" is, roughly, a very small, temporary, and in some sense "unofficial" (or, unofficial seeming) store where a limited selection of merchandise is sold out of a space not normally used for the purpose. I assume a pop-up museum is analogous.
Well, yes. Obviously I cannot claim that it literally never happens. But I can tell you that, in my experience, it doesn't. Since I am in a position to observe a great deal of what goes on in federal litigation (including many very high-stakes cases) I can say with some confidence that corruption is extremely unlikely to be the explanation for the outcome of any given case. You may call this an anecdote and, of course, it is. But it's much more evidence than you (or, I'd wager, virtually any other/.er) have.
I think what you're saying is true for a lot of/.ers, but there are definitely a lot out there who think that judges are taking bribes. This is plain to see whenever any legal decision is discussed here. I don't think it's clear whether the original sentiment I'm responding to had to do with judges or legislators. I don't have much informative to say when it comes to legislators. I think what you've said basically sums it up. But when it comes to judges, on the other hand, I have a perspective that I think many/.ers would be interested. (And I think the mods bear that out.)
Hi. I work for a federal judge. My job is writing what are, in essence, draft opinions. I have long substantive conversations with the judge on virtually every opinion we issue. I have a lot of friends who do the same thing. So believe me when I say that if the judge I worked for, of if the judges my friends were working for were being offered bribes, I would definitely know about it. He isn't, and they aren't. Not even close. It just does not happen. Sorry.
And let me add: we are very very good at our jobs. We aren't perfect, and the law often isn't as clear as one would like. But suffice it to say that nine times out of ten, if you aren't a lawyer and you think a decision is crazy or wrong, the more likely explanation is that you just don't know the law that's being applied. It's definitely not bribery and it probably isn't even incompetence (at least, not on the judge's part.) And, having actually read the opinion and knowing something about the law, I can tell you that this case is no different.
So how about this: before wildly casting accusations of bribery around, why don't you take a few minutes to actually read the opinion and then tell us what you think is wrong with it?
The reason this isn't likely to happen is that first sale doctrine is a copyright-specific concept. It is codified in the Copyright Act at 17 U.S.C. 109 as an exception to the copyright holder's otherwise-exclusive distribution rights. As far as I know, the DMCA has no analogous exception. (Though it might -- I'm no DMCA expert. Someone should go read it and report back.)
Well, sort of. But if you're right about the law, you're overlooking three things:
1) Beinging a suit in small claims court is very very easy in virtually every jurisdiction. 2) Companies respond very well to merely the threat of litigation. 3) Class actions. It may not help individual consumers much, but rest assured that, if the denial of refunds is actually illegal, there WILL be a class action lawsuit, and it will cost EA a lot of money. So at least it would help to shape their behavior moving forward.
I'm no expert on this area of law, but my very strong suspicion is that you are actually entitled to a refund regardless of what EA tells you if you buy the game and it just doesn't work through no fault of your own. If there's anyone out there who has a more informed opinion than mine, I'd be very happy to hear it.
This is pretty funny. You make a textual argument suggesting that because I've conceded that the penalties are "too high" they are, looking at the constitutional text, "excessive fines." But suddenly your interest in the text evaporates when I point out the inconvenient (for you) definition of the word "fine." Are we, for some reason, more interested in the definition of "excessive" than of "fine"?
To start: as I've said elsewhere, a statutory civil penalty is not a fine. Fines are paid to the government, but this payment would be made to the copyright holder.
And by my math $22.5 million is only the "minimum" penalty if you share 30,000 songs and a court finds the infringement to be willful. If a court does not find it to be willful, then the sum would have to be much more.
Your trick is to make it sound like you committed only one infringement by sharing your library, but in fact you committed (again, by my math) 30,000 violations. You might think that $22.5 million sounds ridiculous for 30,000 copyright violations, but I don't. I think it just sounds too high.
I suggest you do a little research and find some examples of what counts as "excessive" in the constitutional sense. If I get pulled over and handed a $500 speeding ticket, I might think that's "too high." and most people would probably agree (depending on my speed, etc.... but bear with me). But do you really think that this would be unconstitutional, just because it is "too high"? I think it's clear that you'd have to establish something more than that, otherwise the courts would constantly be interfering. In other words, if we don't want a lot of crazy judicial interference, "excessive," in the constitutional sense, has to mean something more than just what the average person would call "too high."
Right. "Very very good evidence" means that it very often points in the right direction...but not always. It's no objection to this that ip addresses are sometimes assigned to laser printers (among many many obvious things).
Because of copyright law. That's why. Having to obey laws, even while we lobby to have them changed, is the price we pay for living in a stable society.
There's a tort called vexatious litigation. It's common law.
There is also a possible penalty under the Federal Rules of Civil Procedure, Rule 11, for signing your name to a legal declaration that you have not investigated and, thus, do not have good reason to believe that it is true. The judge, essentially, gets to make up any penalty they think is appropriate (within reason).
How is this abuse? This sounds to me like copyright holders enforcing legal rights that they actually have. And, yes, we all know that the owner of an IP address is the actual user who is responsible for the copyright infringement. But it is usually very very good evidence. It's more than enough to bring an action against someone, but probably not enough to ultimately win your case. This is as it should be.
The problem is that our copyright law provides for astronomical statutory damages for infringement. If this weren't the case, plaintiffs wouldn't have the leverage to coerce settlements that they have now. It isn't nice that they do this, but it is effective and, in a system like ours that is designed to be adversarial, it's hard to fault them for it. Similarly, one can't blame the courts for enforcing the law that congress has enacted -- they're required to do that unless the law is unconstitutional. I've heard a lot of good arguments that the statutory penalties are too high, but never a good argument that they're actually unconstitutional
If all this doesn't make it clear: there is someone to blame. But it isn't the courts or copyright holders. It's CONGRESS. If they would get off their asses and just fix the outrageous statutory damages, the situation would be much improved. But the odds of that happening are approximately 0% for obvious reasons.
I don't see what's so bad about the fee. If you win, the fee is refunded. So the goal is pretty clearly to discourage frivolous appeals. It's also, in the scheme of things, quite small. Ever look up what court filing fees are? Hint: they are typically much more than $35.
Now now, you've got to remember this is Belize, not the states, if somebody high up enough says your guilty, the facts don't matter.
I can't help but ask: when you wrote this, did you actually know anything about Belize to support your sweeping (and somewhat offensive, if it's just based on stereotypes) conclusion?
There's a lot you're missing, but I'll just highlight the big one: the statistic is that 47% of Americans pay no federal INCOME tax. They do pay plenty of other taxes, like the federal payroll tax and social security taxes, to say nothing of the various state taxes and, at the very least, sales tax. It's true that there are still some people who also do not pay payroll taxes (18.1% of Americans). But these people are overwhelming either elderly, disabled, children, or students (who will eventually be paying taxes, typically at a higher rate thanks to their education-enhanced income). And the remainder typically have jobs, but nevertheless make very little money.
Well, clearly the $500 is excessive as compensation. But that's just the point: it isn't compensation. Typically statutory damages are set higher than compensatory damages would have been for the added punitive effect and, sometimes, to encourage enforcement through private lawsuits.
So, sure, we can debate whether $500 is fair, but it's beside the point to argue that it isn't fair because it overcompensates. It is supposed to overcompensate. The right question is whether it's fair on the grounds intended to justify it: as punishment (and, of course, we can and should always ask the second order question whether this is an acceptable justification for statutory damages).
Well you've got me there -- and it looks like the basic rule that you have no right to a jury trial for 'petty' crimes goes back much farther than 1996. I had no idea about any of that. I've asked around and most of my fellow law-school graduates seem to have known about it. So never fear, it is taught in law schools, just not to law students who never take criminal procedure (and don't worry, I'm not a criminal lawyer). This is why you don't take legal advice from strangers on the internet (and, of course, why strangers on the internet, such as myself, do not offer legal advice).
So I guess I have to agree with you; we unfortunately seem to not take the 6th Amendment very seriously when it comes to "minor" crimes.
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I have no disagreement with any of this. I think the upshot (which I never really brought home in what I wrote) is that prosecutors have some discretion, but it's limited by a countervailing obligation to enforce the laws that were actually passed. So, yes, they do have some responsibility for the charges they bring, but it's responsibility they share with the legislature.
In Swartz's case, he wasn't doing anything strictly illegal
No, he was. As has been quite widely discussed here and elsewhere he was accused of violating the Computer Fraud and Abuse Act and, from what I've read, he probably was actually "guilty". And, yes, 35 years is the actual punishment. Sure, the prosecutors have discretion in prosecuting crimes, but I continue to be amazed that all of our abuse is heaped upon the prosecutors for trying to enforce a law THAT CONGRESS ACTUALLY PASSED. Don't get me wrong, I think that 35 years (or, really, any punishment at all) for what Swartz did is nuts.And I think that there is an under-appreciated moral dimension to the prosecution decisions that US attorneys make. But then again, do we really want a system where the prosecutors feel free to enforce a law or not based on their own preferences? Isn't this what a legislature is for? Why are we focusing on the prosecutors who tried to enforce it instead of the actual people who passed and have the power to fix the law?
A small point: TFS says that both rulings are likely to be appealed, but the Aereo decision was actually from the 2nd Circuit Court of Appeals. So, unless the Supreme Court takes the case next term (extremely unlikely) that decision is final.
Well, I know that a "pop-up store" is, roughly, a very small, temporary, and in some sense "unofficial" (or, unofficial seeming) store where a limited selection of merchandise is sold out of a space not normally used for the purpose. I assume a pop-up museum is analogous.
Well, yes. Obviously I cannot claim that it literally never happens. But I can tell you that, in my experience, it doesn't. Since I am in a position to observe a great deal of what goes on in federal litigation (including many very high-stakes cases) I can say with some confidence that corruption is extremely unlikely to be the explanation for the outcome of any given case. You may call this an anecdote and, of course, it is. But it's much more evidence than you (or, I'd wager, virtually any other /.er) have.
I think what you're saying is true for a lot of /.ers, but there are definitely a lot out there who think that judges are taking bribes. This is plain to see whenever any legal decision is discussed here. I don't think it's clear whether the original sentiment I'm responding to had to do with judges or legislators. I don't have much informative to say when it comes to legislators. I think what you've said basically sums it up. But when it comes to judges, on the other hand, I have a perspective that I think many /.ers would be interested. (And I think the mods bear that out.)
Hi. I work for a federal judge. My job is writing what are, in essence, draft opinions. I have long substantive conversations with the judge on virtually every opinion we issue. I have a lot of friends who do the same thing. So believe me when I say that if the judge I worked for, of if the judges my friends were working for were being offered bribes, I would definitely know about it. He isn't, and they aren't. Not even close. It just does not happen. Sorry.
And let me add: we are very very good at our jobs. We aren't perfect, and the law often isn't as clear as one would like. But suffice it to say that nine times out of ten, if you aren't a lawyer and you think a decision is crazy or wrong, the more likely explanation is that you just don't know the law that's being applied. It's definitely not bribery and it probably isn't even incompetence (at least, not on the judge's part.) And, having actually read the opinion and knowing something about the law, I can tell you that this case is no different.
So how about this: before wildly casting accusations of bribery around, why don't you take a few minutes to actually read the opinion and then tell us what you think is wrong with it?
The reason this isn't likely to happen is that first sale doctrine is a copyright-specific concept. It is codified in the Copyright Act at 17 U.S.C. 109 as an exception to the copyright holder's otherwise-exclusive distribution rights. As far as I know, the DMCA has no analogous exception. (Though it might -- I'm no DMCA expert. Someone should go read it and report back.)
Better than changing them all to green, I suppose.
Well, sort of. But if you're right about the law, you're overlooking three things:
1) Beinging a suit in small claims court is very very easy in virtually every jurisdiction.
2) Companies respond very well to merely the threat of litigation.
3) Class actions. It may not help individual consumers much, but rest assured that, if the denial of refunds is actually illegal, there WILL be a class action lawsuit, and it will cost EA a lot of money. So at least it would help to shape their behavior moving forward.
I'm no expert on this area of law, but my very strong suspicion is that you are actually entitled to a refund regardless of what EA tells you if you buy the game and it just doesn't work through no fault of your own. If there's anyone out there who has a more informed opinion than mine, I'd be very happy to hear it.
This is pretty funny. You make a textual argument suggesting that because I've conceded that the penalties are "too high" they are, looking at the constitutional text, "excessive fines." But suddenly your interest in the text evaporates when I point out the inconvenient (for you) definition of the word "fine." Are we, for some reason, more interested in the definition of "excessive" than of "fine"?
To start: as I've said elsewhere, a statutory civil penalty is not a fine. Fines are paid to the government, but this payment would be made to the copyright holder.
And by my math $22.5 million is only the "minimum" penalty if you share 30,000 songs and a court finds the infringement to be willful. If a court does not find it to be willful, then the sum would have to be much more.
Your trick is to make it sound like you committed only one infringement by sharing your library, but in fact you committed (again, by my math) 30,000 violations. You might think that $22.5 million sounds ridiculous for 30,000 copyright violations, but I don't. I think it just sounds too high.
Also, by the way, statutory damages in a civil suit are not a "fine" since the money goes to the plaintiff and not the government.
I suggest you do a little research and find some examples of what counts as "excessive" in the constitutional sense. If I get pulled over and handed a $500 speeding ticket, I might think that's "too high." and most people would probably agree (depending on my speed, etc. ... but bear with me). But do you really think that this would be unconstitutional, just because it is "too high"? I think it's clear that you'd have to establish something more than that, otherwise the courts would constantly be interfering. In other words, if we don't want a lot of crazy judicial interference, "excessive," in the constitutional sense, has to mean something more than just what the average person would call "too high."
You're right. I thought GP was talking about lawsuits, for some reason.
Right. "Very very good evidence" means that it very often points in the right direction...but not always. It's no objection to this that ip addresses are sometimes assigned to laser printers (among many many obvious things).
Because of copyright law. That's why. Having to obey laws, even while we lobby to have them changed, is the price we pay for living in a stable society.
There's a tort called vexatious litigation. It's common law.
There is also a possible penalty under the Federal Rules of Civil Procedure, Rule 11, for signing your name to a legal declaration that you have not investigated and, thus, do not have good reason to believe that it is true. The judge, essentially, gets to make up any penalty they think is appropriate (within reason).
How is this abuse? This sounds to me like copyright holders enforcing legal rights that they actually have. And, yes, we all know that the owner of an IP address is the actual user who is responsible for the copyright infringement. But it is usually very very good evidence. It's more than enough to bring an action against someone, but probably not enough to ultimately win your case. This is as it should be.
The problem is that our copyright law provides for astronomical statutory damages for infringement. If this weren't the case, plaintiffs wouldn't have the leverage to coerce settlements that they have now. It isn't nice that they do this, but it is effective and, in a system like ours that is designed to be adversarial, it's hard to fault them for it. Similarly, one can't blame the courts for enforcing the law that congress has enacted -- they're required to do that unless the law is unconstitutional. I've heard a lot of good arguments that the statutory penalties are too high, but never a good argument that they're actually unconstitutional
If all this doesn't make it clear: there is someone to blame. But it isn't the courts or copyright holders. It's CONGRESS. If they would get off their asses and just fix the outrageous statutory damages, the situation would be much improved. But the odds of that happening are approximately 0% for obvious reasons.
I don't see what's so bad about the fee. If you win, the fee is refunded. So the goal is pretty clearly to discourage frivolous appeals. It's also, in the scheme of things, quite small. Ever look up what court filing fees are? Hint: they are typically much more than $35.
Now now, you've got to remember this is Belize, not the states, if somebody high up enough says your guilty, the facts don't matter.
I can't help but ask: when you wrote this, did you actually know anything about Belize to support your sweeping (and somewhat offensive, if it's just based on stereotypes) conclusion?
There's a lot you're missing, but I'll just highlight the big one: the statistic is that 47% of Americans pay no federal INCOME tax. They do pay plenty of other taxes, like the federal payroll tax and social security taxes, to say nothing of the various state taxes and, at the very least, sales tax. It's true that there are still some people who also do not pay payroll taxes (18.1% of Americans). But these people are overwhelming either elderly, disabled, children, or students (who will eventually be paying taxes, typically at a higher rate thanks to their education-enhanced income). And the remainder typically have jobs, but nevertheless make very little money.
See: http://www.economist.com/blogs/graphicdetail/2012/09/daily-chart-9 and http://www.npr.org/blogs/money/2012/09/18/161337343/the-47-percent-in-one-graphic
Well, clearly the $500 is excessive as compensation. But that's just the point: it isn't compensation. Typically statutory damages are set higher than compensatory damages would have been for the added punitive effect and, sometimes, to encourage enforcement through private lawsuits.
So, sure, we can debate whether $500 is fair, but it's beside the point to argue that it isn't fair because it overcompensates. It is supposed to overcompensate. The right question is whether it's fair on the grounds intended to justify it: as punishment (and, of course, we can and should always ask the second order question whether this is an acceptable justification for statutory damages).
Well you've got me there -- and it looks like the basic rule that you have no right to a jury trial for 'petty' crimes goes back much farther than 1996. I had no idea about any of that. I've asked around and most of my fellow law-school graduates seem to have known about it. So never fear, it is taught in law schools, just not to law students who never take criminal procedure (and don't worry, I'm not a criminal lawyer). This is why you don't take legal advice from strangers on the internet (and, of course, why strangers on the internet, such as myself, do not offer legal advice).
So I guess I have to agree with you; we unfortunately seem to not take the 6th Amendment very seriously when it comes to "minor" crimes.