I am not seeing this.
In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true.
I can't find a comment by NYCL in the second link. If one is there, can you show me where it is?
NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is/. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent./. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Thank you for your kind words, nudicle.
So far the only RIAA case in which the merits of the due process issue has been judicially determined is UMG v. Lindor, which held that it is a colorable defense, and rejected the RIAA's contention that it is not.
And as you correctly observe, all I have ever said about fair use in these cases is that based upon the hundreds of factual scenarios I have encountered, there are some p2p filesharing behaviors which would clearly qualify as a fair use, some which would clearly not, and some which would occupy a gray area. In fact I publicly criticized the Tenenbaum legal defense for not drawing any of those distinctions.
Since the "distribution troll" is working this thread, I'll make this statement once:
The distribution right in 17 USC 106(3) requires: -that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND -that it be to the public.
When someone states that I made 2 incorrect predictions, and then cites to 2 links which have no relation to what he was saying... that is dishonesty. I'm so sorry I 'disappointed' you, but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?
I know even my friends on Slashdot don't like it when I say this, but...
The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.
Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost?
At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour.
The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...
Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove held that it is absurd to argue that each unauthorized download represents a lost sale.
I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).
Just my 2c.
Well it was a lot more "c" than I've ever seen from the RIAA lawyers (or their friends in the DOJ).
You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.
Shhhhh. The RIAA doesn't want people (especially judges) to know that. If you say something like that here, word might get out.
What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out.
Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot.
Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)
The poster to whom you're responding is a pure troll. His comment was completely dishonest.
1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.
2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.
The fact that the defendant has made an argument isn't news.
I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.
Your thinking that a "country lawyer" is something less than a lawyer is quite mistaken. A "country lawyer" is a lawyer, with all of the requisite skills and training. [PS I'm not really a country lawyer, I'm a city lawyer. I just wish I were a country lawyer, and I would like to have the traits of a good country lawyer: common sense, concern for people, families, and communities, and a belief in doing the right thing.]
The law is a learned profession. I am not saying a lay person cannot understand the law; indeed the reason I have been active on Slashdot these past 5 years, and the reason I post actual litigation documents, and do not water things down, has been to help lay people, especially the tech community, have an improved understanding of what is actually going on in digital online copyright law. I do not know a single member of my profession who has worked harder at showing that non-lawyers are every bit as smart as lawyers, and not only can but should learn everything they can about the law and the legal process. But that does not mean that a lawyer's training and experience count for nothing; they count for a very great deal if they have been done right.
You, however, seem to elevate arrogance to a worthy position in your value system, which means you elevate ignorance to that same perch. Learning comes with humility; arrogance and self-aggrandizement, among lawyers and nonlawyers alike, blocks it.
I have cited to you a statute which describes the "distribution right" as a right which requires -dissemination of copies TO THE PUBLIC and -a SALE or other TRANSFER OF OWNERSHIP or a RENTAL, LEASE, OR LENDING.
And I have asked you and your colleague to show what evidence the RIAA has educed of either of these necessary elements.
When you answer my question, I'll answer yours.
I don't think you will answer it, because neither the RIAA lawyers nor the Department of Justice lawyers have been able to do so.
Your statement that you could be a country lawyer may not be right, because you do not seem to have your values in order, but you might be able to qualify to work for the RIAA; for all I know you already do.
When you respond to my question. And to you, I am Mr. Beckerman, rather than "Ray". And if this is a contest as to who has more free time, you win hands down.
I'm not actually a lawyer, I'm just THAT pedantic.
Well I am actually a lawyer, and knowledgeable on the matters I have discussed. Neither your pedantry nor that of your colleague is supported by the law, as demonstrated by your lack of authority for your positions.
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED
Well the word "distribution" isn't defined but the "distribution right" -- which is the thing capable of being infringed -- is defined. It doesn't include every form of distribution, only distribution by dissemination of copies to the public, by a sale, other transfer of ownership, rental, lease, or lending. Since these did not occur, there was no infringement of the limited distribution right created by 17 USC 106(3).
Neither side has produced evidence that large numbers of copies of the works in question were distributed. Given the way filesharing works, it is highly unlikely that Thomas distributed more than 3-4 copies of each work (and even that is unlikely).
Nor was any evidence adduced of the essential elements: dissemination of copies TO THE PUBLIC and a sale, another transfer of ownership, a rental, a lease, or a lending.
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award.
But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll. If you want to continue your charade, please tell us SPECIFICALLY: 1. what the elements of "distribution" are under 17 USC 106(3) and 2. what evidence was submitted to prove them.
Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
I suspect this is a somewhat silly question, but...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want.
:)
I know it seems that way, but not really.
The first trial's verdict was set aside because the Judge recognized that his acceptance of the RIAA's incorrect jury instruction on "making available".
The ruling setting aside the second trial's verdict was a partial victory for Ms. Thomas-Rasset, reducing a $1,920,000 verdict to $54,000.
In view of the Judge's ruling on the second verdict, the RIAA will never 'get the verdict they want'; the most they can possibly get is $54,000.
It is common, in granting "remittitur" due to an obviously out of control jury, to lower the verdict, but offer the plaintiff a chance to reject the lower verdict and get a do-over. Nothing at all unusual about it.
The RIAA will never get more than $54,000, and may well get less the second time around. And if the Judge finally does tackle the constitutional issue, I predict the third verdict will be a WHOLE LOT less.
Why is South Carolina always in the vanguard of these great ideas? This is such a wonderful idea. I wish I'd thought of it first.
All we need now is for terrorists to have to put a sticker in their windshield. Then if they get caught without it, we slap 'em with an appearance ticket.
Slashdot Mirror
I am not seeing this. In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true. I can't find a comment by NYCL in the second link. If one is there, can you show me where it is? NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Thank you for your kind words, nudicle.
So far the only RIAA case in which the merits of the due process issue has been judicially determined is UMG v. Lindor, which held that it is a colorable defense, and rejected the RIAA's contention that it is not.
And as you correctly observe, all I have ever said about fair use in these cases is that based upon the hundreds of factual scenarios I have encountered, there are some p2p filesharing behaviors which would clearly qualify as a fair use, some which would clearly not, and some which would occupy a gray area. In fact I publicly criticized the Tenenbaum legal defense for not drawing any of those distinctions.
Since the "distribution troll" is working this thread, I'll make this statement once:
The distribution right in 17 USC 106(3) requires:
-that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND
-that it be to the public.
When someone states that I made 2 incorrect predictions, and then cites to 2 links which have no relation to what he was saying... that is dishonesty. I'm so sorry I 'disappointed' you, but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?
I know even my friends on Slashdot don't like it when I say this, but...
The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.
Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...
Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove held that it is absurd to argue that each unauthorized download represents a lost sale.
I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).
Just my 2c.
Well it was a lot more "c" than I've ever seen from the RIAA lawyers (or their friends in the DOJ).
You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.
Shhhhh. The RIAA doesn't want people (especially judges) to know that. If you say something like that here, word might get out.
What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out. Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot. Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)
The poster to whom you're responding is a pure troll. His comment was completely dishonest.
You're either a moron or an RIAA lawyer.
1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.
2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.
The fact that the defendant has made an argument isn't news.
I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.
I.e., bye bye RIAA damages theory.
Your thinking that a "country lawyer" is something less than a lawyer is quite mistaken. A "country lawyer" is a lawyer, with all of the requisite skills and training. [PS I'm not really a country lawyer, I'm a city lawyer. I just wish I were a country lawyer, and I would like to have the traits of a good country lawyer: common sense, concern for people, families, and communities, and a belief in doing the right thing.]
The law is a learned profession. I am not saying a lay person cannot understand the law; indeed the reason I have been active on Slashdot these past 5 years, and the reason I post actual litigation documents, and do not water things down, has been to help lay people, especially the tech community, have an improved understanding of what is actually going on in digital online copyright law. I do not know a single member of my profession who has worked harder at showing that non-lawyers are every bit as smart as lawyers, and not only can but should learn everything they can about the law and the legal process. But that does not mean that a lawyer's training and experience count for nothing; they count for a very great deal if they have been done right.
You, however, seem to elevate arrogance to a worthy position in your value system, which means you elevate ignorance to that same perch. Learning comes with humility; arrogance and self-aggrandizement, among lawyers and nonlawyers alike, blocks it.
I have cited to you a statute which describes the "distribution right" as a right which requires
-dissemination of copies TO THE PUBLIC and
-a SALE or other TRANSFER OF OWNERSHIP or a RENTAL, LEASE, OR LENDING.
And I have asked you and your colleague to show what evidence the RIAA has educed of either of these necessary elements.
When you answer my question, I'll answer yours.
I don't think you will answer it, because neither the RIAA lawyers nor the Department of Justice lawyers have been able to do so.
Your statement that you could be a country lawyer may not be right, because you do not seem to have your values in order, but you might be able to qualify to work for the RIAA; for all I know you already do.
When you respond to my question. And to you, I am Mr. Beckerman, rather than "Ray". And if this is a contest as to who has more free time, you win hands down.
I'm not actually a lawyer, I'm just THAT pedantic.
Well I am actually a lawyer, and knowledgeable on the matters I have discussed. Neither your pedantry nor that of your colleague is supported by the law, as demonstrated by your lack of authority for your positions.
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED
Well the word "distribution" isn't defined but the "distribution right" -- which is the thing capable of being infringed -- is defined. It doesn't include every form of distribution, only distribution by dissemination of copies to the public, by a sale, other transfer of ownership, rental, lease, or lending. Since these did not occur, there was no infringement of the limited distribution right created by 17 USC 106(3).
Neither side has produced evidence that large numbers of copies of the works in question were distributed. Given the way filesharing works, it is highly unlikely that Thomas distributed more than 3-4 copies of each work (and even that is unlikely).
Nor was any evidence adduced of the essential elements:
dissemination of copies TO THE PUBLIC and
a sale, another transfer of ownership, a rental, a lease, or a lending.
You have yet to point us to a transfer of ownership, or to a rental, or a lease, or a lending.
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award. But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.
By the way, a distribution requires
1.dissemination of copies to the public
2. by sale or other transfer of ownership, or a rental, lease or lending.
17 USC 106(3). The RIAA has never proved, and probably could never prove, a distribution in any of these end user cases.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll. If you want to continue your charade, please tell us SPECIFICALLY:
1. what the elements of "distribution" are under 17 USC 106(3) and
2. what evidence was submitted to prove them.
Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
The MAXIMUM actual damages for an unauthorized download of any of these mp3 files is AT MOST about 35 cents.
1. Wholesale price=70 cents
2. Expenses=35 cents.
3. ???????????
4. Profit!!!!!!!!!! [35 cents]
(That's assuming every single unauthorized download = a lost sale, which is obviously not the case. See, e.g. USA v. Dove.
How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
:)
I know it seems that way, but not really.
The first trial's verdict was set aside because the Judge recognized that his acceptance of the RIAA's incorrect jury instruction on "making available".
The ruling setting aside the second trial's verdict was a partial victory for Ms. Thomas-Rasset, reducing a $1,920,000 verdict to $54,000.
In view of the Judge's ruling on the second verdict, the RIAA will never 'get the verdict they want'; the most they can possibly get is $54,000.
It is common, in granting "remittitur" due to an obviously out of control jury, to lower the verdict, but offer the plaintiff a chance to reject the lower verdict and get a do-over. Nothing at all unusual about it.
The RIAA will never get more than $54,000, and may well get less the second time around. And if the Judge finally does tackle the constitutional issue, I predict the third verdict will be a WHOLE LOT less.
Why is South Carolina always in the vanguard of these great ideas? This is such a wonderful idea. I wish I'd thought of it first.
All we need now is for terrorists to have to put a sticker in their windshield. Then if they get caught without it, we slap 'em with an appearance ticket.
What, exactly, did NYCL do that was "unduly contentious?" I don't know.
Neither do I. Neither did Judge Trager. Neither did Judge Levy.
Stupid decision? Yes.
Let us say an "incorrect" decisions.
Some sort of anti-individual, pro-monopolistic corporation perversion of the legal system conspiracy? No.
Let me put it this way: undue deference have been paid to the corporate plaintiffs on numerous occasions during this litigation.