plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"
Why does it seem that everybody involved in these cases is an idiot? The RIAA lawyers, the defendants and their representation, the judges, the juries...they all sound like total stooges. How has everything gone so completely wrong?
What's gone on in the 2 cases that have gone to trial is like one long, bad dream. The root problem is economics. The defendants can't afford to go out and hire a competent lawyer, and lawyers can't afford to do these cases without getting paid. A good lawyer would have either prevented the outlandish things that occurred, or developed an impervious record for an appeal.
You can talk all you want to about the fact that 5 files were uploaded to MediaSentry, bottom line is that plaintiffs never proved a "distribution" occurred within the meaning of the Copyright Act, and never proved that more than 5 of the files were actually reproduced. Moreover, it appears that they failed to prove the requisite elements for entitlement to statutory damages. So what you should have had was a judgment in favor of plaintiffs for approximately $1.65.
Next round is the constitutionality of the award under due process analysis. You can bet that Judge Gertner will reduce the verdict on that ground, but not enough to bring it anywhere near $1.65, which is all she should have allowed were she carefully applying applicable law.
Highly regrettable that the litigants' attorneys and the Court all failed to stay grounded.
Additionally there appear to have been other important issues which were overlooked...
In the last few cases that have gone to trial and been concluded, the lawyers seem to have "overlooked" important and obvious issues. Have these people's lawyers been incompetent?
That would be an opinion. I'm just giving you the facts. Come to your own opinion.
The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.
Astonishing, is it not, that a federal judge, and all that "legal talent", would miss something as simple as that? No one bothered to read the statute.
I'm not sure he'd have won if his legal team was made up of Jerry Spence, Clarence Darrow, and God Almighty.
No he would not have "won", but the RIAA's recovery would, with proper lawyering and proper judging, have been limited to the RIAA's actual damages for 5 song files, which would have totalled at most around $1.65.
If the RIAA comes knocking, ask yourself three questions: "Am I downloading copyrighted songs without paying for them?", "Am I sharing copyrighted songs with the world?", and "Do I know full well I'm doing this?". If the answers to all three are "Yes.", then suck it up and pay the settlement. You can delay the inevitable, but they are going to win.
The Copyright Act does not extend to the concept of "sharing". There's a distribution right, and a performance right. But no amorphous "sharing" right. In this case they sued on the distribution right, but failed to prove the requisite elements of distribution: -dissemination of copies to the public -by sale or other transfer of ownership, or by rental, lease, or lending.
It's amazing how a simple attorney can overrule a judge's decision. Why is a slashdot user being quoted and his opinion elevated to greater than that of a judge? Are we in Bizarro world?
Well actually, we are a nation of laws. It is assumed, and it is in fact true, that judges make mistakes all the time, and that some lowly lawyer like myself may be just the one to point out their error.
In a big law firm, the junior law clerk may have to show a senior partner that the partner is wrong.
All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.
I've had that same thought myself from time to time.
As I mentioned elsewhere, Nesson's strategy has always been to give up on liability and argue that the damages are either unconstitutional or otherwise impermissible
Liability for what? Everybody, including the Judge, seems to have forgotten that there were 2 theories of liability, 1 for violation of the reproduction right, 1 for violation of the distribution right. While there may have been sufficient evidence to support infringement of the reproduction right, there was not evidence to support "distribution".
Additionally there appear to have been other important issues which were overlooked such as chronology, evidentiary admissibility of technical material, admissibility of extraneous matter, the lack of verification of most of the sound recordings, absence of evidence of dissemination of copies "to the public", absence of evidence of a 'sale, other transfer of ownership, or rental, lease, or lending', and possibly how many "works" there were.
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it
For those of us who aren't lawyers, why was it improper?
Someone who makes a decent middle-class salary may not have the means to add legal counsel to the list of bills.
Just because someone makes a decent amount of money does not mean that they have discretionary income to throw around.
Almost nobody can afford to expend hundreds of thousands of dollars in attorneys fees, which is what the RIAA makes sure a contested case will cost.
Right, but either you can realistically afford a lawyer or you can't. If paying a lawyer means you won't have enough money for food, I'd say that qualifies as "can't". If there's no specific income requirement, I would assume that it's up to the judge on whether or not you qualify for court-appointed pro bono counsel (I also assume that if you yourself can convince a lawyer to defend you for free, the court has no say in the matter).
Plus these cases are more expensive than they need to be because of the RIAA tactics. They commence cases without proper evidence; they press cases even against people they know to be innocent; they do not withdraw cases until after the defendant has incurred excessive attorneys fees; they stonewall discovery, forcing unnecessary motion practice; they refuse to compromise on anything; they try to keep everything confidential, so it will not be available to lawyers in other cases.
They should ask for a correction then. riaaradar.com is the best way to avoid helping the RIAA and I am not going to ask companies that routinely lie and steal if they are not evil.
I'm with you on this. No way would I contact one of these record companies and ask them if they're RIAA-clean.
I don't see why artists don't just become their own record companies. If I could buy DRM free music at a reasonable price, that wasn't going to the MAFIAA, I would. Just run a big server and throw some checkout software on it. even if they sold their music for $0.05 per track, they'd still be making more than the 3.5% or whatever they get from record companies.
Ray, correct me if I'm wrong, but I don't think cases are normally dismissed as a result of discovery sanctions for a single missing document.
If you're 2 weeks away from the trial, and one side deliberately flaunts an order directing them to produce something which is key to a total defense; you bet it is.
If I understand GP, he isn't saying that the robust protective order would have been a bar to asserting fair use, he is saying that the appropriate sanction for failing to produce the required evidence would be to dismiss the case
Correct. I was asked if they should be held in contempt for failing to produce the summary on the date they were ordered to do so. I indicated that were I the Judge, I would not have held them in contempt, but would have dismissed their case.
Ray--if I was ordered by a judge to produce a detailed breakdown of my accounting (say a trial for tax evasion) practices over the past years by 7/31, and on the 31st I came to court with just a "protective order motion" asking that my accounting practices be kept secret...
Wouldn't I be held in contempt?
I mean...I can see producing the motion *with* the information...or...before it...but... tell me why it is these guys appear to have rights in the legal system that everyone else doesn't... More importantly, what piece of paperwork do I have to file so I can ignore court orders like they do and get off scott free?
If I were the Judge I probably wouldn't have held them in contempt, but I probably would have issued a discovery sanction. Since in this case the material is needed to assess the fair use defense, which would be a complete bar to the action, I would have issued an order striking their complaint, dismissing the case.
Gertner's ruling states that "[the Court] will, however, order the second set of documents, which implicate the business interests of third-party artist-owned companies, shielded from disclosure."
What are these documents, and who are these "third-party artist-owned companies?"
That's non-controversial. It refers to the agreements with recording artists, other record companies, etc.
Slashdot Mirror
You want people to donate $600,000 to the RIAA? Is this from the Onion?
I'm still hoping I've been pranked.
plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"
You are 100% right.
CmdrTaco was probably worried about being sued for libel by ... the Harvard law school!
Does he have anything to worry about, though?
Nah.
1. It was an expression of an opinion.
2. Truth is a defense.
Why does it seem that everybody involved in these cases is an idiot? The RIAA lawyers, the defendants and their representation, the judges, the juries...they all sound like total stooges. How has everything gone so completely wrong?
What's gone on in the 2 cases that have gone to trial is like one long, bad dream. The root problem is economics. The defendants can't afford to go out and hire a competent lawyer, and lawyers can't afford to do these cases without getting paid. A good lawyer would have either prevented the outlandish things that occurred, or developed an impervious record for an appeal.
Incredibly the defendant's Harvard Law School "legal team" is now taking up a collection to raise money to PAY the RIAA.
You can talk all you want to about the fact that 5 files were uploaded to MediaSentry, bottom line is that plaintiffs never proved a "distribution" occurred within the meaning of the Copyright Act, and never proved that more than 5 of the files were actually reproduced. Moreover, it appears that they failed to prove the requisite elements for entitlement to statutory damages. So what you should have had was a judgment in favor of plaintiffs for approximately $1.65.
Next round is the constitutionality of the award under due process analysis. You can bet that Judge Gertner will reduce the verdict on that ground, but not enough to bring it anywhere near $1.65, which is all she should have allowed were she carefully applying applicable law.
Highly regrettable that the litigants' attorneys and the Court all failed to stay grounded.
Additionally there appear to have been other important issues which were overlooked...
In the last few cases that have gone to trial and been concluded, the lawyers seem to have "overlooked" important and obvious issues. Have these people's lawyers been incompetent?
That would be an opinion. I'm just giving you the facts. Come to your own opinion.
Wait, so if you have an incompetent lawyer (or none at all), you can be prevented form appealing even though you have a strong case to do so?
Yes.
The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.
Astonishing, is it not, that a federal judge, and all that "legal talent", would miss something as simple as that? No one bothered to read the statute.
I'm not sure he'd have won if his legal team was made up of Jerry Spence, Clarence Darrow, and God Almighty.
No he would not have "won", but the RIAA's recovery would, with proper lawyering and proper judging, have been limited to the RIAA's actual damages for 5 song files, which would have totalled at most around $1.65.
If the RIAA comes knocking, ask yourself three questions: "Am I downloading copyrighted songs without paying for them?", "Am I sharing copyrighted songs with the world?", and "Do I know full well I'm doing this?". If the answers to all three are "Yes.", then suck it up and pay the settlement. You can delay the inevitable, but they are going to win.
The Copyright Act does not extend to the concept of "sharing". There's a distribution right, and a performance right. But no amorphous "sharing" right. In this case they sued on the distribution right, but failed to prove the requisite elements of distribution:
-dissemination of copies to the public
-by sale or other transfer of ownership, or by rental, lease, or lending.
It's amazing how a simple attorney can overrule a judge's decision. Why is a slashdot user being quoted and his opinion elevated to greater than that of a judge? Are we in Bizarro world?
Well actually, we are a nation of laws. It is assumed, and it is in fact true, that judges make mistakes all the time, and that some lowly lawyer like myself may be just the one to point out their error.
In a big law firm, the junior law clerk may have to show a senior partner that the partner is wrong.
We live in a nation of laws, not men.
All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.
I've had that same thought myself from time to time.
As I mentioned elsewhere, Nesson's strategy has always been to give up on liability and argue that the damages are either unconstitutional or otherwise impermissible
Liability for what? Everybody, including the Judge, seems to have forgotten that there were 2 theories of liability, 1 for violation of the reproduction right, 1 for violation of the distribution right. While there may have been sufficient evidence to support infringement of the reproduction right, there was not evidence to support "distribution".
Additionally there appear to have been other important issues which were overlooked such as chronology, evidentiary admissibility of technical material, admissibility of extraneous matter, the lack of verification of most of the sound recordings, absence of evidence of dissemination of copies "to the public", absence of evidence of a 'sale, other transfer of ownership, or rental, lease, or lending', and possibly how many "works" there were.
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it
For those of us who aren't lawyers, why was it improper?
It was a legal question, not a fact question.
Someone who makes a decent middle-class salary may not have the means to add legal counsel to the list of bills. Just because someone makes a decent amount of money does not mean that they have discretionary income to throw around.
Almost nobody can afford to expend hundreds of thousands of dollars in attorneys fees, which is what the RIAA makes sure a contested case will cost.
Right, but either you can realistically afford a lawyer or you can't. If paying a lawyer means you won't have enough money for food, I'd say that qualifies as "can't". If there's no specific income requirement, I would assume that it's up to the judge on whether or not you qualify for court-appointed pro bono counsel (I also assume that if you yourself can convince a lawyer to defend you for free, the court has no say in the matter).
Plus these cases are more expensive than they need to be because of the RIAA tactics. They commence cases without proper evidence; they press cases even against people they know to be innocent; they do not withdraw cases until after the defendant has incurred excessive attorneys fees; they stonewall discovery, forcing unnecessary motion practice; they refuse to compromise on anything; they try to keep everything confidential, so it will not be available to lawyers in other cases.
They should ask for a correction then. riaaradar.com is the best way to avoid helping the RIAA and I am not going to ask companies that routinely lie and steal if they are not evil.
I'm with you on this. No way would I contact one of these record companies and ask them if they're RIAA-clean.
Someone mentioned this in another post Ray, but is there any way for the defense team to request that these numbers be audited
No
or do you have to have some actionable piece of evidence that the books are cooked?
I haven't even seen the summary yet. Why would I think the books are cooked?
I don't see why artists don't just become their own record companies. If I could buy DRM free music at a reasonable price, that wasn't going to the MAFIAA, I would. Just run a big server and throw some checkout software on it. even if they sold their music for $0.05 per track, they'd still be making more than the 3.5% or whatever they get from record companies.
That's pretty much what they're doing these days.
Ray, correct me if I'm wrong, but I don't think cases are normally dismissed as a result of discovery sanctions for a single missing document.
If you're 2 weeks away from the trial, and one side deliberately flaunts an order directing them to produce something which is key to a total defense; you bet it is.
If I understand GP, he isn't saying that the robust protective order would have been a bar to asserting fair use, he is saying that the appropriate sanction for failing to produce the required evidence would be to dismiss the case
Correct. I was asked if they should be held in contempt for failing to produce the summary on the date they were ordered to do so. I indicated that were I the Judge, I would not have held them in contempt, but would have dismissed their case.
I'm putting my money on "case is dropped, RIAA gets to keep things secret"
That's an interesting thought. Hard for me to imagine them doing that, though.
Ray--if I was ordered by a judge to produce a detailed breakdown of my accounting (say a trial for tax evasion) practices over the past years by 7/31, and on the 31st I came to court with just a "protective order motion" asking that my accounting practices be kept secret... Wouldn't I be held in contempt? I mean...I can see producing the motion *with* the information...or...before it...but... tell me why it is these guys appear to have rights in the legal system that everyone else doesn't... More importantly, what piece of paperwork do I have to file so I can ignore court orders like they do and get off scott free?
If I were the Judge I probably wouldn't have held them in contempt, but I probably would have issued a discovery sanction. Since in this case the material is needed to assess the fair use defense, which would be a complete bar to the action, I would have issued an order striking their complaint, dismissing the case.
Gertner's ruling states that "[the Court] will, however, order the second set of documents, which implicate the business interests of third-party artist-owned companies, shielded from disclosure." What are these documents, and who are these "third-party artist-owned companies?"
That's non-controversial. It refers to the agreements with recording artists, other record companies, etc.