Thanks!
I really appreciate you taking the time to reply to something like this buried under an old thread. There are so many cases now on your litigation page, though, I can barely keep any of them straight at this point. But that's a good thing, I suppose--it must mean that more people are choosing to litigate instead of entering into unfair settlements. Though I still wish the RIAA would just stop the campaign entirely. Yes it is a good thing that there are more people fighting back, and more lawyers jumping into the fight.
And yes I too wish they'd stop this reign of terror. It's definitely work I wish I didn't have.
You're off topic. This story has nothing to do with compliance with DMCA take-down issues. Of course OU, if it's an ISP, has a duty to comply with lawful DMCA notices. The RIAA, though, usually sends defective DMCA notices.
This story is about identifying subscribers' confidential information.
The best place to look for a debate over the substantive law issue is the case file of Elektra v. Barker. If you don't like reading legal documents, and want to read a general description of the issues, which I wrote for an entertainment lawyers' publication, check this article in Hollywood Reporter Esq.
No one is saying that the ISP or university is responsible for defending you from a claim of copyright infringement.
We are saying that they have a duty not to turn over confidential information, and throw away the students' due process rights, in response to sham ex parte proceedings. They should make sure that the subscribers or students get prior notice so they have an opportunity to seek legal counsel and defend themselves. and that the proceeding is otherwise in compliance with law.
Because the university put themselves directly in the middle of the situation by agreeing to act as *the* ISP for their students. They include the cost in tuition and provide the service for "free". The result is that the students have no choice but to pay the university for Internet service. Consequently, the university has a responsibility to protect those same students from the dangers of the net.
The service is provided to support the educational purposes of the university not to provide free entertainment for students who for generations had to make do with nothing more than campus radio. There is no danger if you download from iTunes or a subscription service like Rhapsody - paying a monthly fee equivalent to the price of a six-pack and a pizza. westlake, with all due respect your response is not responsive. 1. The parent post was mentioning why the university has a duty to protect the student's due process rights, and not just hand over confidential information to any Tom, Dick, or Harry who slaps together a sham, ex parte, proceeding. It has nothing to do with defending a student on the substantive issue of copyright infringement.
2. Your reference to downloading from iTunes or Rhapsody is likewise off-topic. The RIAA has no knowledge of any downloading, and would be bringing the case even if every song in the folder had been lawfully purchased from iTunes and Rhapsody. It is suing because it believes files were "made available" for sharing.
artists generally make under 15% of the money from record sales You're right.
As a practical matter, they actually usually make 0% of the money from record sales.
The way it works is this: the performer gets an "advance". Usually that's the only money the artist gets for his or her performance on the recording.
As records are sold, the record company deducts all of its expenses in making the album, and lots of other "expenses", some real, some not, before paying any royalties to the artist.
Only when the record company has "recouped" its so-called "expenses" does it start to pay anything to the artist.
The record companies have it figured out so that they usually never "recoup", so the performing artist never receives any royalties for his or her performance.
The statements of the law given by Mr. Gabriel via Alter_Fritz, and by you above, are not correct. Unfortunately, I cannot go into detail refuting them here on Slashdot, because the RIAA hasn't made such an argument, and I haven't had to refute one yet, in any court papers. Don't be surprised if it never does get briefed, and please don't repeat it to people as though it were the law unless you have actual legal authorities supporting it.
I'm surprised at you, Alter_Fritz. Didn't you read the transcript of the January 26, 2007, oral argument in Elektra v. Barker, where Judge Karas lectured Mr. Gabriel on the absence of "volition".
You never heard that from me, Alter_Fritz, so please don't attribute it to my blog. The only person you've heard that from is Mr. Gabriel, the RIAA's lawyer.
The Student Legal Services office at OU, which acts as a legal adviser and representative for the students, has worked very hard to make the students aware of their rights and to help them find counsel. Unfortunately SLS's charter does not authorize it to represent the students in federal court, so it must try to obtain outside referrals for them.
It is the university's counsel's office to which Mr. Hazelbacker's letter is addressed.
Ohio University is being asked to turn over confidential information that it is legally forbidden to turn over except pursuant to a (a) court order, (b) based on evidence that would be admissible at trial, (c) sufficient to establish a prima facie case of copyright infringement against each person whose information is being sought.
Ohio University owes a duty to its students to force the RIAA to make such a showing before it releases any information.
In 2004 the RIAA was forbidden by a federal court to join different John Does in a single lawsuit. The RIAA has been regularly ignoring that order.
The university has a duty to make sure that that order has not been violated.
The RIAA has a legal obligation to bring proceedings on prior notice, rather than ex parte, whenever it is possible to do so.
The university has an obligation to request of the Court that it make sure the students receive prior notice of the RIAA's motion, rather than find out about an order that's already been entered, with no meaningful opportunity to challenge it.
The reason it's the University's responsibility?
Because it has a legal obligation to do so and because it is the the university that is breaking the law when it fails to do so.
Ohio University's office of Student Legal Services has done an excellent job -- far better than the SLS at many other schools -- of advising the students. In fact they affirmatively went out of the way to help them find counsel and to make them aware of their legal rights, and of resources upon which they could draw.
The problem is that under their charter, they're not authorized to litigate in federal court, and have to refer the students to outside counsel.
Now the university's counsel's office should be taking a more activist role than it has, as Mr. Hazelbaker eloquently pointed out in his letter (pdf).
It sounds to me like we're making a classic stupid military mistake: we keep on defending ourselves, at our homes, schools, and workplaces.
So let me ask: how do we take the fight to them? How about a counterclaim for copyright misuse, demanding forfeiture of their copyrights?
I'm so sorry that he feels he doesn't owe society anything for his "great" works. That without a stable society with culture and intelligence, people wouldn't be buying books or listening to music. Does he gather inspiration for his works of the "spirit and mind" from nothingness? What role does society play in the creative arts?
If you can't stand the thought of society getting something after you are dead, after you so clearly benefited from society. then you are simply an arrogant spoiled human being. Being selfish and having an obsession with ownership are not exactly redeeming qualities.
Profit from your toil while you are alive, then pass that profit on to your children if you wish. But a baker cannot make a loaf of bread and sell it many times over on into many generations. But she can certainly create wealth around baking and establish a business that can sustain her children into old age as long as her children can be smart enough and work hard enough to maintain this means of production.
I'm reminded of the statement from Fogerty v. Fantasy, recently quoted at page 4 of the April 23, 2007, decision of Judge West in Capitol v. Foster:
copyright law ultimately serves the purpose of enriching the general public through access to creative works
In Fogerty it was held:
The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.... In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants." Cohen, supra, at 622-623.
The Fogerty court went on to say:
While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too.....
More importantly, the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement. The Constitution grants to Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I, 8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:
"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.".....
We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:
"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Scienc
1. It has nothing to do with countries. I trace the heritage back to the ancient Greeks, and to the Hebrews, and it probably goes back further than that, to people who fought for freedom but weren't as good as the Hebrews and Greeks at recording their histories.
2. I don't understand what you're saying "you americans". Everywhere in the world there are freedom-loving people, and there are all kinds of governmental types and corporate types who will try to take it away. It is a struggle everywhere to fight for freedom, in America as everywhere else, and it always has been.
Would the RIAA then not just decide that this case is better un-fought and just drop the charges? If they did this would the court disallow new cases to be brought using similar evidence?
I'm just wondering if they will simply attempt to duck the setting of precedence instead of chancing their case. If they were smart they would.
So far I haven't seen any "evidence" of their being smart.
The problem here is that the RIAA's expert is testifying that, although they use secret methods to identify infringers, ones with unknown reliability, he's sure they're accurate. What, if anything, he bases this conclusion on, however, is apparently not something he wants to talk about. I mean, he examined her computer and found nothing infringing on it. His main argument that she must be the infringer is that their secret programs work perfectly, and the ISP could never misidentify someone (even though ISP identifications have frequently been wrong in other cases).
Although he was offered by the RIAA to testify as to how Media Sentry works, he apparently doesn't know much, if anything, about that. He dodged all of those questions. He's not sure how reliable his programs actually are, because they've never bothered to try and find out (never mind that being a legal requirement under Daubert).........
Forgive me for not buying that. "Yes, our secret program identifies infringers without fail! No, we won't tell the Court how it works, even though I was sent by the RIAA as a witness for that exact purpose. No, I don't know anything about the business, or whether we get paid per infringer caught. I'm sure that our secret program doesn't have any flaws, but I'm not going to tell you why! I'm an expert, you should just swallow whatever tripe I spew without questioning me!" Good post.
I wish you would post under a User ID, because my filtering preferences take out all "AC"'s unless they've been modified upwards.
By the way, this expert had never been deposed before.
It seems to me the RIAA having an "expert witness" was a rather token gesture to imply a degree of diligence was taken when approaching the case. For the most part this seems to have worked for them, but it is nice now to see the true strength of their case being tried... this is what courts do really, isn't it, by testing the accounts of two conflicting parties with regards to a particular event.
I am certainly looking forward to seeing what happens next.
Can the RIAA replace their expert with, say, an expert? Or is it too late, they've bought the ticket and they have to take the ride? Excellent observation. That's exactly right. They never expected him to be tested, and he never was. (That is, until February 23, 2007, when we took his deposition, and he wound up taking himself out of the game.)
Yes they can replace Dr. Jacobson with a real expert.
But finding a real expert who will agree with Dr. Jacobson that MediaSentry's secret procedures are hunky dory, and don't need to be checked or vetted, is another thing again.... none of the better people, like Johan Pouwelse, would ever sign on to such a thing.
In fact, a course which Dr. Jacobson himself teaches, "information warfare", completely contradicts his entire RIAA-case show.
Wouldn't you love to see the RIAA found to be a vexatious litigant, though? I predict you will start seeing rulings like that. Capitol v. Foster comes pretty close. And it ain't over yet.
I've always been impressed that you had the technical acumen to show up regularly here on slashdot, as well as to seek the advice from those here who have a more detailed technical knowledge. The **AA may have bucketloads of money, but it just goes to show that it doesn't always work when a community works together, and a lawyer is smart enough to use the resources of "the people" instead of an overpriced, overpomped "expert."
People often have commented on slashdot "so what are we going to do except bitch about it." The fact is, however, that there are quite a few field experts here (IT, legal, etc), and when we work together to share knowledge and fight against the idiocy that goes on in today's courtroom, we can make a difference. Possibly a much bigger difference than the whole "boycott" movement. This is a remarkable community, and I love being a part of it.
I'll never forget the first time I discovered it. I'd checked my sitemeter and found some referrals from "slashdot.org". I went there and found what appeared to be a "forum" or "discussion board", but one which was unlike anything I'd seen before. There was an incredible, highly intelligent, debate going on over a post on the Elektra v. Santangelo case.
People were debating over issues -- sort of like a Talmudic debate -- citing to different portions of the transcript, and to different portions of different legal documents, for support of various points. They seemed to be quite scholarly, and not unlike lawyers, but I didn't think it was a lawyer's site, so I asked my youngest son, who is a techie, if he'd ever heard of Slashdot. And of course he said "of course" and proceeded to tell me what it was. And my life hasn't been quite the same since.
One of my most memorable experiences was the "honor" of being roasted and villified by some, and defended by others, in my Slashdot interview, and the ensuing comment period, over my abruptness with some of the questioners and commenters whom I considered a bit troll-like.
I am proud to be part of this robust, questioning, diverse community, and would be overlooking a valuable resource were I not to seek the input of its members.
You're neither more nor less "accurate"... you're just wrong.
It is one of the beautiful things in human history that democracy and freedom have transcended time, and spanned many generations, and have survived as beliefs even when dead in in the physical world, only to rise again from the ashes. And the reason is because some people were willing to risk all -- including their lives -- to preserve and protect the idea, and to keep it alive to be handed down to future generations.
Slashdot Mirror
Yeah, it would be a good movie.
Here's a good article to start the research with.
And yes I too wish they'd stop this reign of terror. It's definitely work I wish I didn't have.
You're off topic. This story has nothing to do with compliance with DMCA take-down issues. Of course OU, if it's an ISP, has a duty to comply with lawful DMCA notices. The RIAA, though, usually sends defective DMCA notices.
This story is about identifying subscribers' confidential information.
Yeah imagine if the RIAA had evidence that any of these people were in fact "distributors" within the meaning of the Copyright Act.
Unfortunately, they don't.
The best place to look for a debate over the substantive law issue is the case file of Elektra v. Barker. If you don't like reading legal documents, and want to read a general description of the issues, which I wrote for an entertainment lawyers' publication, check this article in Hollywood Reporter Esq.
No one is saying that the ISP or university is responsible for defending you from a claim of copyright infringement.
We are saying that they have a duty not to turn over confidential information, and throw away the students' due process rights, in response to sham ex parte proceedings. They should make sure that the subscribers or students get prior notice so they have an opportunity to seek legal counsel and defend themselves. and that the proceeding is otherwise in compliance with law.
1. The parent post was mentioning why the university has a duty to protect the student's due process rights, and not just hand over confidential information to any Tom, Dick, or Harry who slaps together a sham, ex parte, proceeding. It has nothing to do with defending a student on the substantive issue of copyright infringement.
2. Your reference to downloading from iTunes or Rhapsody is likewise off-topic. The RIAA has no knowledge of any downloading, and would be bringing the case even if every song in the folder had been lawfully purchased from iTunes and Rhapsody. It is suing because it believes files were "made available" for sharing.
As a practical matter, they actually usually make 0% of the money from record sales.
The way it works is this: the performer gets an "advance". Usually that's the only money the artist gets for his or her performance on the recording.
As records are sold, the record company deducts all of its expenses in making the album, and lots of other "expenses", some real, some not, before paying any royalties to the artist.
Only when the record company has "recouped" its so-called "expenses" does it start to pay anything to the artist.
The record companies have it figured out so that they usually never "recoup", so the performing artist never receives any royalties for his or her performance.
The statements of the law given by Mr. Gabriel via Alter_Fritz, and by you above, are not correct. Unfortunately, I cannot go into detail refuting them here on Slashdot, because the RIAA hasn't made such an argument, and I haven't had to refute one yet, in any court papers. Don't be surprised if it never does get briefed, and please don't repeat it to people as though it were the law unless you have actual legal authorities supporting it.
I'm surprised at you, Alter_Fritz. Didn't you read the transcript of the January 26, 2007, oral argument in Elektra v. Barker, where Judge Karas lectured Mr. Gabriel on the absence of "volition".
You never heard that from me, Alter_Fritz, so please don't attribute it to my blog. The only person you've heard that from is Mr. Gabriel, the RIAA's lawyer.
I just want to be sure to clarify something.
The Student Legal Services office at OU, which acts as a legal adviser and representative for the students, has worked very hard to make the students aware of their rights and to help them find counsel. Unfortunately SLS's charter does not authorize it to represent the students in federal court, so it must try to obtain outside referrals for them.
It is the university's counsel's office to which Mr. Hazelbacker's letter is addressed.
Ohio University is being asked to turn over confidential information that it is legally forbidden to turn over except pursuant to a (a) court order, (b) based on evidence that would be admissible at trial, (c) sufficient to establish a prima facie case of copyright infringement against each person whose information is being sought.
Ohio University owes a duty to its students to force the RIAA to make such a showing before it releases any information.
In 2004 the RIAA was forbidden by a federal court to join different John Does in a single lawsuit. The RIAA has been regularly ignoring that order.
The university has a duty to make sure that that order has not been violated.
The RIAA has a legal obligation to bring proceedings on prior notice, rather than ex parte, whenever it is possible to do so.
The university has an obligation to request of the Court that it make sure the students receive prior notice of the RIAA's motion, rather than find out about an order that's already been entered, with no meaningful opportunity to challenge it.
The reason it's the University's responsibility?
Because it has a legal obligation to do so and because it is the the university that is breaking the law when it fails to do so.
See generally my Open Letter to Colleges and Universities.
I'm not asking the university to defend someone sued in a copyright infringement case.
I'm asking it to protect its students' due process rights, rather than give them away.
Actually, let's be careful here.
Ohio University's office of Student Legal Services has done an excellent job -- far better than the SLS at many other schools -- of advising the students. In fact they affirmatively went out of the way to help them find counsel and to make them aware of their legal rights, and of resources upon which they could draw.
The problem is that under their charter, they're not authorized to litigate in federal court, and have to refer the students to outside counsel.
Now the university's counsel's office should be taking a more activist role than it has, as Mr. Hazelbaker eloquently pointed out in his letter (pdf).
I'm so sorry that he feels he doesn't owe society anything for his "great" works. That without a stable society with culture and intelligence, people wouldn't be buying books or listening to music. Does he gather inspiration for his works of the "spirit and mind" from nothingness? What role does society play in the creative arts? If you can't stand the thought of society getting something after you are dead, after you so clearly benefited from society. then you are simply an arrogant spoiled human being. Being selfish and having an obsession with ownership are not exactly redeeming qualities. Profit from your toil while you are alive, then pass that profit on to your children if you wish. But a baker cannot make a loaf of bread and sell it many times over on into many generations. But she can certainly create wealth around baking and establish a business that can sustain her children into old age as long as her children can be smart enough and work hard enough to maintain this means of production.
I'm reminded of the statement from Fogerty v. Fantasy, recently quoted at page 4 of the April 23, 2007, decision of Judge West in Capitol v. Foster:
copyright law ultimately serves the purpose of enriching the general public through access to creative works
In Fogerty it was held:
The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.... In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants." Cohen, supra, at 622-623.
The Fogerty court went on to say:
While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too.....
More importantly, the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement. The Constitution grants to Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I, 8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:
"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." .....
We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:
"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Scienc
1. It has nothing to do with countries. I trace the heritage back to the ancient Greeks, and to the Hebrews, and it probably goes back further than that, to people who fought for freedom but weren't as good as the Hebrews and Greeks at recording their histories.
2. I don't understand what you're saying "you americans". Everywhere in the world there are freedom-loving people, and there are all kinds of governmental types and corporate types who will try to take it away. It is a struggle everywhere to fight for freedom, in America as everywhere else, and it always has been.
So far I haven't seen any "evidence" of their being smart.
You live, breathe, eat, love, hate, etc.
You're on the inside.
Sorry to disillusion you.
I wish you would post under a User ID, because my filtering preferences take out all "AC"'s unless they've been modified upwards.
By the way, this expert had never been deposed before.
Yes they can replace Dr. Jacobson with a real expert.
But finding a real expert who will agree with Dr. Jacobson that MediaSentry's secret procedures are hunky dory, and don't need to be checked or vetted, is another thing again.... none of the better people, like Johan Pouwelse, would ever sign on to such a thing.
In fact, a course which Dr. Jacobson himself teaches, "information warfare", completely contradicts his entire RIAA-case show.
Thank you, Alzanteol.
Beautiful comment.
I'll never forget the first time I discovered it. I'd checked my sitemeter and found some referrals from "slashdot.org". I went there and found what appeared to be a "forum" or "discussion board", but one which was unlike anything I'd seen before. There was an incredible, highly intelligent, debate going on over a post on the Elektra v. Santangelo case.
People were debating over issues -- sort of like a Talmudic debate -- citing to different portions of the transcript, and to different portions of different legal documents, for support of various points. They seemed to be quite scholarly, and not unlike lawyers, but I didn't think it was a lawyer's site, so I asked my youngest son, who is a techie, if he'd ever heard of Slashdot. And of course he said "of course" and proceeded to tell me what it was. And my life hasn't been quite the same since.
One of my most memorable experiences was the "honor" of being roasted and villified by some, and defended by others, in my Slashdot interview, and the ensuing comment period, over my abruptness with some of the questioners and commenters whom I considered a bit troll-like.
I am proud to be part of this robust, questioning, diverse community, and would be overlooking a valuable resource were I not to seek the input of its members.
You're neither more nor less "accurate"... you're just wrong.
It is one of the beautiful things in human history that democracy and freedom have transcended time, and spanned many generations, and have survived as beliefs even when dead in in the physical world, only to rise again from the ashes. And the reason is because some people were willing to risk all -- including their lives -- to preserve and protect the idea, and to keep it alive to be handed down to future generations.