Sony, EMI, Warner Bros, and Universal are in real trouble. Make sure you check http://riaaradar.com/ [riaaradar.com] to make sure when you purchase music you don't buy anything from these companies that fund the RIAA.
Well most of their recordings are sold under their affiliate labels, with different names. But so long as you check it out at http://riaaradar.com/ if they say it's cool, it's cool. If they say it's RIAA-tainted, stay away.
This judge obviously fears exactly such a thing so is attempting to bypass the jury. The correct response is impeachment. Anything less sends a signal to other judges that this sort of thing is acceptable, even if some higher judge rules she can't do it in this particular case. Violating the right to a trial by jury is something no judge should be allowed to even contemplate.
I have not hesitated to criticize Judge Gertner on many occasions when I feel she erred, and indeed in my blog post on this very issue my "Ed. note" criticizes her opinion in a number of respects. But IMO you are overreacting.
It is not "violating the right to trial by jury" to try to determine which issues are triable to the jury and which to the judge.
It is a problem judges have to wrestle with on a daily basis, due to the history of our courts. There were initially 2 different judicial systems, the "law" courts, and the "chancery" or "equity" courts, each applying completely different rules. Equity courts did not have jury trials. Law courts did. When the 2 systems, and 2 separate bodies of law, were merged, the courts were presented with the sometimes complex task of sorting out what goes to the jury and what goes to the judge. When the Constitution preserved the jury trial right for "law" actions, its authors were using the term advisedly, because there was no jury right to preserve in equity actions.
In my opinion, the correct answer to the judge's question is this:
-this is a combined injunction (equity) action and damages (law) action; -all factual issues in the injunction action are triable by the judge; all factual issues in the money damages action are triable by the jury; -the "fair use" defense, even if it is considered equitable, is triable by the jury to the extent it is asserted as a defense to the money damages action; -the jury's finding on fair use is binding in the money damages part of the case, but is only advisory on the injunction part of the case.
PS 1.If she wanted to "violate" defendant's right to a jury trial, she would just have ruled it wasn't triable to the jury, rather than asked the parties to brief the issue. 2.The record companies also have a right to jury trial. In view of their great success with a runaway Minnesota jury, maybe it's the RIAA -- rather than Mr. Tenenbaum -- that would like the jury trial here.
Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.
How is this insightful? NYCL quoted a long posting and basically added "me too!" NYCL posts some interesting stuff, plenty of which deserves a +1 informative or insightful. But something like clogs up the comment board rather than enrich the discussion process.
And what have you done to enrich the discussion process?
As to whether it would be a good thing or a bad thing for Judge Gertner, as opposed to the jury, to decide the fair use defense, I just don't know.
What I do know is that -there are essentially 2 cases here, an injunction case and a money damages case; -the injunction case is tried by the judge, the damages case by the jury, -the fair use defense is a defense to both, -the jury gets to decide it for the money damages case, the judge for the injunction side of the case.
What the decision is saying is this:
1) historically, a type of legal question known as an "equitable" claim (or equitable defense) has been decided by the judge, not a jury [for ancient historical reasons I won't get into here on Slashdot]
2) there are some cases which refer to copyright fair use as an equitable defense but it's not clear if those cases are using the term "equitable" as that term is used in (1)
3) some cases have put the fair use defense to the jury to decide, but without considering the issue I have described in (1) and (2)
4) I'd like the parties to tell me, in writing, what they think the correct answer to this issue is, and why
5) once I get the written submissions in (4), I'll decide whether the judge or the jury should rule on the copyright fair use defense
I think you have appropriately summarized her decision. Where she goes wrong, I think, is in point 1, in failing to distinguish between an equitable claim and an equitable defense. Historically equitable defenses to legal claim are part and parcel of the legal claim and tried along with it, to the jury.
We must start with the US Constitution which has a clause permitting Congress to create copyright&patent law, but more specifically such law can only be created to the purpose of promoting progress and promoting more such creation for the benefit of society. So Congress created copyright law, and it pretty much said copying was prohibited, period. Very quickly it became clear that there was a problem, with the Supreme Court making a number of rulings. Consider a typical example of modern Fair Use, something like a newspaper reviewing a book and quoting a couple of key sentences. And just to help the example lets say the newspaper is bashing the book, saying that it is riddled with errors and just plain lousy writing. The newspaper can't effectively review and criticize the book without quoting some of the errors from the book and showing an example of the atrocious writing style from the book. It is often virtually impossible to write effective review or criticism without quoting anything, and under copyright law even the smallest quote is copying is prohibited. Copyright law was having the effect of pretty much prohibiting the writing and publications of reviews, and it was most particularly a problem that anyone writing negative review or criticism would get sued under copyright law. There is a double constitutional problem there. For one, the First Amendment guarantees the right to Free Speech. Copyright law was effectively prohibiting a broad class of speech, it was prohibiting effective review and most particularly having the effect of prohibiting negative point-of-view review and criticism. The second issue is that the REQUIRED function of copyright law is to promote the creation and publication of new creative works. Copyright law was functioning to virtually prohibit the creation of valuable new independent review and criticism. It is not so unusual for one part of the Constitution to wind up in conflict with another part of the Constitution, or even in conflict with itself. Many categories of Fair Use were established on 1st Amendment free speech grounds or other constitutional issues.
Anyway, what happened is the Supreme Court got the case and saw that copyright Law was unconstitutionally prohibiting 1st Amendment protected free speech to review and criticism. When law does something unconstitutional that law is generally struck down as unconstitutional. Well, the Supreme Court apparently didn't relish the prospect of just plain striking down the entirety of copyright law and leaving it to congress to fix the problem by figuring out some new valid law to pass. Some call it "judicial activism", but the Supreme Court just plain invented the concept of "Fair Use", and they invented the idea that copyright law never actually attempted to do what the text of the law said it did. The text of copyright law prohibited copying, period, but the court decided that copyright law never actually tried to prohibit short quote-copying. Copyright law was not struck down as invalid because copyright law never actually tried to prohibit that copying. So the way Fair Use concept works is that copyright law is assumed to willingly flees when faced with any case of Fair Use. Copyright law would have to be struck down as invalid if it ever did actually attempt to restrict Fair Use.
Fair Use is the only thing keeping copyright law from being struck down as invalid.
Some people with a extremely aggressive views on copyright, people trying to diminish or eliminate Fair Use, they are very very misguided. If they actually succeeded in their efforts then copyright itself would be null and void, struck down as unconstitutional.
Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.
I went back to AP's answer and counterclaim to see what they had to say about why they felt they had the copyright to Garcia's photo. They said he was a "staff photographer".
If I were a judge reading that, I would assume they meant that he was an employee of AP. Garcia says he is not an employee, but an independent contractor. Since his allegations are specific while theirs is vague, I would assume he is telling the truth.
Wrong. Chances are you should be and legally could be using it
Frequently you can secure the permission to do so for very little cost
Wrong
or at least far less than the cost of litigation.
Yes that's true. The cost of obtaining clearances might be in the tens of thousands while the cost of the litigation might be in the hundreds of thousands.
I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative.
I agree. It is a classic fair use.
The problem is that the way the courts handle these cases, it can cost zillions of dollars in legal fees to get to that point, and there is no guarantee how it will come out. The creative process is hampered by this openendedness. An artist should be able to know ahead of time whether he can or can't use something, and if so to what extent.
"Photog" was to fit within the space limitations of Slashdot headline requirements. And "litho" was the word used in TechDirt; people use the term "litho" all the time to refer to lithographs.
the judge is telling them to provide financial data on the specific songs that the RIAA has claimed were illegally distributed, to which they have made an outrageous claim of value and loss of revenue. They opened the door to this, not the defendant
Actually the judge isn't up to the "excessiveness" issue yet; she ruled that she will revisit that issue only if and when the RIAA gets a jury verdict for statutory damages. Her ruling ordering production of the revenue information relates strictly to the fair use defense:
However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work") , the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)
The RIAA has thousands of cases going on, from threatening letters and settlement offers to actual court actions. The information in this case would be likely to be relevant to large amounts of those cases. We have already seen them make contradictory claims in different cases. It would serve justice and streamline the legal process for their information to be public.
The info from the hard drives of individual file sharers, however, would only usually be relevant to the case at hand.
Well put. But as we know by know, "serv[ing] justice and streamlin[ing] the legal process" are anathema to the RIAA.
I would assume "Eighth Amendment to the Constitution" trumps "Copyright statutory damages". But then again, what do I know, I assumed it would never get to this point in the first place since the RIAA never had evidence that ANY actual damages occurred.
Just for the record, it's the Fifth Amendment upon which they based the constitution-based part of their motion. By the way, there are good common law and copyright law reasons, short of the constitutional reasons, for knocking down this shocking verdict.
Technically, I believe he allowed a new trial because of a mistake in the jury instructions from the first trial that said "making available" was enough to count as copyright infringement. He also commented that the judgment was too high in his opinion, but that's not why he allowed a new trial.
This time around, she was again found guilty of copyright infringement on nothing more than "making available" (I'm still surprised the defense lawyer never brought this up), and the judgment was over 8 times higher.
I guess it just goes to show that a jury trial is never predictable.
The jury instruction in this trial was just as faulty as the jury instruction in the first trial. In the first trial the judge in essence instructed the jurors that to prove a distribution plaintiffs only had to show that the files were on defendant's computer and were available. In the second trial the judge just told them they had to find a "distribution" but gave no instruction to them on what a "distribution" under Copyright Act sec. 106(3) is. I.e. he gave them zero guidance.
What I don't know is whether defendant's counsel preserved for appeal this objection, or whether they acquiesced in the incorrect instruction.
Slashdot Mirror
Sony, EMI, Warner Bros, and Universal are in real trouble. Make sure you check http://riaaradar.com/ [riaaradar.com] to make sure when you purchase music you don't buy anything from these companies that fund the RIAA.
Well most of their recordings are sold under their affiliate labels, with different names. But so long as you check it out at http://riaaradar.com/ if they say it's cool, it's cool. If they say it's RIAA-tainted, stay away.
And what have you done to enrich the discussion process?
What have I done? I have more posts than any one else on /. I even argue with myself! (Yours truly, AC)
OK. I see. Kind of like the Universal Soldier.
Well then, I don't care what anyone says. I, for one, welcome the domination of our Anonymous Coward overlords.
"To be or not to be" is in the public domain.
It wouldn't be if it had been uttered by Donald Duck.
Now that's a production of Hamlet that I'd pay to see.
Not me. I would never patronize Disney.
This judge obviously fears exactly such a thing so is attempting to bypass the jury. The correct response is impeachment. Anything less sends a signal to other judges that this sort of thing is acceptable, even if some higher judge rules she can't do it in this particular case. Violating the right to a trial by jury is something no judge should be allowed to even contemplate.
I have not hesitated to criticize Judge Gertner on many occasions when I feel she erred, and indeed in my blog post on this very issue my "Ed. note" criticizes her opinion in a number of respects. But IMO you are overreacting.
It is not "violating the right to trial by jury" to try to determine which issues are triable to the jury and which to the judge.
It is a problem judges have to wrestle with on a daily basis, due to the history of our courts. There were initially 2 different judicial systems, the "law" courts, and the "chancery" or "equity" courts, each applying completely different rules. Equity courts did not have jury trials. Law courts did. When the 2 systems, and 2 separate bodies of law, were merged, the courts were presented with the sometimes complex task of sorting out what goes to the jury and what goes to the judge. When the Constitution preserved the jury trial right for "law" actions, its authors were using the term advisedly, because there was no jury right to preserve in equity actions.
In my opinion, the correct answer to the judge's question is this:
-this is a combined injunction (equity) action and damages (law) action;
-all factual issues in the injunction action are triable by the judge; all factual issues in the money damages action are triable by the jury;
-the "fair use" defense, even if it is considered equitable, is triable by the jury to the extent it is asserted as a defense to the money damages action;
-the jury's finding on fair use is binding in the money damages part of the case, but is only advisory on the injunction part of the case.
PS
1.If she wanted to "violate" defendant's right to a jury trial, she would just have ruled it wasn't triable to the jury, rather than asked the parties to brief the issue.
2.The record companies also have a right to jury trial. In view of their great success with a runaway Minnesota jury, maybe it's the RIAA -- rather than Mr. Tenenbaum -- that would like the jury trial here.
"To be or not to be" is in the public domain.
It wouldn't be if it had been uttered by Donald Duck.
Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.
How is this insightful? NYCL quoted a long posting and basically added "me too!" NYCL posts some interesting stuff, plenty of which deserves a +1 informative or insightful. But something like clogs up the comment board rather than enrich the discussion process.
And what have you done to enrich the discussion process?
As to whether it would be a good thing or a bad thing for Judge Gertner, as opposed to the jury, to decide the fair use defense, I just don't know.
What I do know is that
-there are essentially 2 cases here, an injunction case and a money damages case;
-the injunction case is tried by the judge, the damages case by the jury,
-the fair use defense is a defense to both,
-the jury gets to decide it for the money damages case, the judge for the injunction side of the case.
What the decision is saying is this: 1) historically, a type of legal question known as an "equitable" claim (or equitable defense) has been decided by the judge, not a jury [for ancient historical reasons I won't get into here on Slashdot] 2) there are some cases which refer to copyright fair use as an equitable defense but it's not clear if those cases are using the term "equitable" as that term is used in (1) 3) some cases have put the fair use defense to the jury to decide, but without considering the issue I have described in (1) and (2) 4) I'd like the parties to tell me, in writing, what they think the correct answer to this issue is, and why 5) once I get the written submissions in (4), I'll decide whether the judge or the jury should rule on the copyright fair use defense
I think you have appropriately summarized her decision. Where she goes wrong, I think, is in point 1, in failing to distinguish between an equitable claim and an equitable defense. Historically equitable defenses to legal claim are part and parcel of the legal claim and tried along with it, to the jury.
We must start with the US Constitution which has a clause permitting Congress to create copyright&patent law, but more specifically such law can only be created to the purpose of promoting progress and promoting more such creation for the benefit of society. So Congress created copyright law, and it pretty much said copying was prohibited, period. Very quickly it became clear that there was a problem, with the Supreme Court making a number of rulings. Consider a typical example of modern Fair Use, something like a newspaper reviewing a book and quoting a couple of key sentences. And just to help the example lets say the newspaper is bashing the book, saying that it is riddled with errors and just plain lousy writing. The newspaper can't effectively review and criticize the book without quoting some of the errors from the book and showing an example of the atrocious writing style from the book. It is often virtually impossible to write effective review or criticism without quoting anything, and under copyright law even the smallest quote is copying is prohibited. Copyright law was having the effect of pretty much prohibiting the writing and publications of reviews, and it was most particularly a problem that anyone writing negative review or criticism would get sued under copyright law. There is a double constitutional problem there. For one, the First Amendment guarantees the right to Free Speech. Copyright law was effectively prohibiting a broad class of speech, it was prohibiting effective review and most particularly having the effect of prohibiting negative point-of-view review and criticism. The second issue is that the REQUIRED function of copyright law is to promote the creation and publication of new creative works. Copyright law was functioning to virtually prohibit the creation of valuable new independent review and criticism. It is not so unusual for one part of the Constitution to wind up in conflict with another part of the Constitution, or even in conflict with itself. Many categories of Fair Use were established on 1st Amendment free speech grounds or other constitutional issues.
Anyway, what happened is the Supreme Court got the case and saw that copyright Law was unconstitutionally prohibiting 1st Amendment protected free speech to review and criticism. When law does something unconstitutional that law is generally struck down as unconstitutional. Well, the Supreme Court apparently didn't relish the prospect of just plain striking down the entirety of copyright law and leaving it to congress to fix the problem by figuring out some new valid law to pass. Some call it "judicial activism", but the Supreme Court just plain invented the concept of "Fair Use", and they invented the idea that copyright law never actually attempted to do what the text of the law said it did. The text of copyright law prohibited copying, period, but the court decided that copyright law never actually tried to prohibit short quote-copying. Copyright law was not struck down as invalid because copyright law never actually tried to prohibit that copying. So the way Fair Use concept works is that copyright law is assumed to willingly flees when faced with any case of Fair Use. Copyright law would have to be struck down as invalid if it ever did actually attempt to restrict Fair Use.
Fair Use is the only thing keeping copyright law from being struck down as invalid.
Some people with a extremely aggressive views on copyright, people trying to diminish or eliminate Fair Use, they are very very misguided. If they actually succeeded in their efforts then copyright itself would be null and void, struck down as unconstitutional.
Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.
I went back to AP's answer and counterclaim to see what they had to say about why they felt they had the copyright to Garcia's photo. They said he was a "staff photographer".
If I were a judge reading that, I would assume they meant that he was an employee of AP. Garcia says he is not an employee, but an independent contractor. Since his allegations are specific while theirs is vague, I would assume he is telling the truth.
One can typically figure that out easily enough,
Wrong
get formal written permission
Wrong
or use work that's attached to a license.
Wrong
If you can't do either of those,
Most people can't
chances are you shouldn't be using it anyways.
Wrong. Chances are you should be and legally could be using it
Frequently you can secure the permission to do so for very little cost
Wrong
or at least far less than the cost of litigation.
Yes that's true. The cost of obtaining clearances might be in the tens of thousands while the cost of the litigation might be in the hundreds of thousands.
I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative.
I agree. It is a classic fair use.
The problem is that the way the courts handle these cases, it can cost zillions of dollars in legal fees to get to that point, and there is no guarantee how it will come out. The creative process is hampered by this openendedness. An artist should be able to know ahead of time whether he can or can't use something, and if so to what extent.
Ultimately, if you don't want to secure the author's permission, you should do your own work.
Sorry to disillusion you, but nihil sub solum novum. There is no such thing as "your own work"; all creators build upon what others have done.
"Photog" was to fit within the space limitations of Slashdot headline requirements. And "litho" was the word used in TechDirt; people use the term "litho" all the time to refer to lithographs.
This is a fishing expedition on the part of the respondent.
1. There is no "respondent", only a "defendant".
2. It was the judge , not the defendant, who indicated that the revenue figures were relevant to the fair use defense.
Are you accusing the judge of going on a "fishing expedition"?
the judge is telling them to provide financial data on the specific songs that the RIAA has claimed were illegally distributed, to which they have made an outrageous claim of value and loss of revenue. They opened the door to this, not the defendant
Actually the judge isn't up to the "excessiveness" issue yet; she ruled that she will revisit that issue only if and when the RIAA gets a jury verdict for statutory damages. Her ruling ordering production of the revenue information relates strictly to the fair use defense:
However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work") , the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)
Why would ownership of rights be confidential?
It wouldn't be, in a case based upon the alleged ownership of those rights.
The RIAA has thousands of cases going on, from threatening letters and settlement offers to actual court actions. The information in this case would be likely to be relevant to large amounts of those cases. We have already seen them make contradictory claims in different cases. It would serve justice and streamline the legal process for their information to be public.
The info from the hard drives of individual file sharers, however, would only usually be relevant to the case at hand.
Well put. But as we know by know, "serv[ing] justice and streamlin[ing] the legal process" are anathema to the RIAA.
Dumb question here, but why not look up the tax returns they've filed with the IRS?
These are public corporations; the information might even be in their filings with the SEC.
Why don't you read my brief, which says that you are wrong, and tell me where I went wrong in my thinking?
Are you talking about the 11th Circuit case?
NYCL has thoroughly disabused me of the notion that their claim has any legal merit...
Well that's a start. Now if we can only get the Judge to see the light.
I don't know; you're getting very hypothetical here. I'm just a simple country lawyer.
I would assume "Eighth Amendment to the Constitution" trumps "Copyright statutory damages". But then again, what do I know, I assumed it would never get to this point in the first place since the RIAA never had evidence that ANY actual damages occurred.
Just for the record, it's the Fifth Amendment upon which they based the constitution-based part of their motion. By the way, there are good common law and copyright law reasons, short of the constitutional reasons, for knocking down this shocking verdict.
Technically, I believe he allowed a new trial because of a mistake in the jury instructions from the first trial that said "making available" was enough to count as copyright infringement. He also commented that the judgment was too high in his opinion, but that's not why he allowed a new trial. This time around, she was again found guilty of copyright infringement on nothing more than "making available" (I'm still surprised the defense lawyer never brought this up), and the judgment was over 8 times higher. I guess it just goes to show that a jury trial is never predictable.
The jury instruction in this trial was just as faulty as the jury instruction in the first trial. In the first trial the judge in essence instructed the jurors that to prove a distribution plaintiffs only had to show that the files were on defendant's computer and were available. In the second trial the judge just told them they had to find a "distribution" but gave no instruction to them on what a "distribution" under Copyright Act sec. 106(3) is. I.e. he gave them zero guidance.
What I don't know is whether defendant's counsel preserved for appeal this objection, or whether they acquiesced in the incorrect instruction.