In Capitol Records v. Foster the court awarded $64,000 in attorneys fees against the RIAA, and in Atlantic Recording v. Andersen the court awarded $108,000.
By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove... (b) a sale, other transfer of ownership, rental, lease, or lending.
NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter?
Or does it only count if I allow my friend to scan copies of every page?
Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on/. -- On the plus side, I can spout off plenty of bad analogies!
It's easy. You just go by what the book says. It says that for there to be a distribution there has to be -a dissemination of copies -to the public -by sale, other transfer of ownership, rental, lease, or lending.
All of the above have to have occurred.
Since none of the above occurred, there is no distribution within the meaning of the Copyright Act.
hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.
Don't worry. There is no way on God's green earth that the judge would even consider precluding Ms. Amurao from making a cross-motion for summary judgment. That would be the most flagrant kind of appealable order. The RIAA lawyers' request that Ms. Amurao's cross-motion not be considered by the Court will be denied.
Maybe "the public" has some special meaning in Lawyer Town
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one?
Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents).
I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.
By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.
You obviously don't know me. I only make arguments that "hold water". I'm just a country lawyer that wound up in a big city. I don't write the law. I report it.
Maybe "the public" has some special meaning in Lawyer Town
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
I wish we had more info on what this "letter to the judge" thing means.
1. A summary judgment motion "searches the record", which means that the Court can grant summary judgment motion AGAINST the party making the motion. I.e., the judge is supposed to search all of the papers, both for and against, and if the moving party's case should be thrown out, the Court should throw the case out.
2. Sometimes, when a party opposing summary judgment feels the other side's case should be thrown out altogether, the party also files a "notice of cross-motion", sometimes he or she doesn't bother.
3. In this case there had been an agreed extension of the time to file "opposition papers".
4. When the RIAA saw that the opposition papers contained a "notice of cross-motion" they complained, saying that the extension of time did not apply to any "cross-motions", and said they would write to the Judge asking her not to consider the "cross-motion".
5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.
Nope. That's what baffles me about this. The jury found that she committed copyright infringement, but there was absolutely no evidence presented by the RIAA that showed she ever uploaded to anyone except MediaSentry. It makes no sense.
Actually, there was no showing that she uploaded anything to anyone, and their expert witness admitted as much under cross-examination.
These weren't personal opinions of mine; they are caselaw. Where an "ongoing course of action", rather than specific acts of infringement, is alleged, the operative date relates back to commencement of the ongoing course of action. And the courts have held that the "work" infringed is the album, not the individual songs.
AFAIK they only provided evidence that she made the songs available. They could not have provided evidence that anyone but themselves downloaded even part of a song. The whole thing is one big fail if you introduce logic, reasoning and previous interpretations of law.
"logic, reasoning and previous interpretations of law"?
Nah, it'll never work. If you use those, then the RIAA might actually lose.
Hey NYCL, maybe you'd be interested in heading up a campaign to collect some funds from those of us in the know to educate the masses. I know from experience that the biggest problem with these court cases is ignorance. The judges sound like they're catching up, but I believe the persons on jury panels are still ignorant of the real dollar values involved and the facts surrounding the RIAA's abuses of the judicial system.
The first thing that comes to mind is that there are scads of advertisements from the MPAA and the RIAA that go to great lengths to equate copyright infringement with criminal theft (a very successful campaign I might point out based upon ignorant comments on this very website). What the world needs right now is not love, but balance. We're lacking *any* kind of counterpoint regarding consumer digital rights. I'd be thrilled to pieces to see one shred of advertisement (a billboard ad, paid ad time on network TV, etc.) that presented the opposition to the RIAA and the MPAA.
In short, if someone were to take the lead and head up a group that took funds from the public that were then used in a campaign of this sort, then I would be the first person in line to donate some cash.
I know, the EFF is *supposed* to be leading the charge on this, but I've seen not one physical manifestation of their efforts. Advertising on the Internet is cheap...but obviously not as effective as a commercial that equates stealing a car with downloading a song.
Anyone?
Everything you say is right, except for the part about me being the one to do it. I'm a lawyer. That's all I am.
Yes, Ray is claiming that all those people did it wrong and I have no idea if he's right. But he is giving a list of arguments to support his point.
So if you want to claim that he is wrong, you should show that those arguments are wrong.
My blog post was written specifically to an audience of experienced lawyers. Any regular litigator knows that the procedural errors I pointed out are correct. And any regular copyright lawyer, litigator or not, knows that the substantive legal errors I pointed out are also correct. By saying that you "have no idea if he's right" you are demonstrating intellectual integrity, something in short supply these days. So thank you.
I'm perplexed by the statement about the US Supreme Court. The Supreme Court's jurisprudence in the area of knocking down excessive "punitive awards" is well established, and would most assuredly lead to the RIAA's statutory damages theory being crushed. See amicus curiae brief, which summarizes and discusses the applicable authorities.
How Scotus determined it's a Constitutional infraction for a person to receive punitive damages from a company in excess of 10 times actual damages, but thousands of dollars per song is hunky dory?
I don't know where you get that from. The Supreme Court would strike this down in a millisecond. See my brief and cases cited.
Jammie Thomas is an Ojibwa woman living in a state where 89.3% of the population is Caucasian. [census.gov] Yes, there is racism in Minnesota -- not overt, cross-burning, KKK-style racism; but a kind of smug, condescending relegation of non-white people to second-class citizenship; people to be tolerated with feigned PC magnanimity, while hinting that life would be better if they would just all go away, "back to where they came from."
Against this backdrop of white Minnesota popular culture, it only stands to reason that Jammie Thomas could not have gotten a fair trial from an all-white jury. For justice to be served, the jury should have included at least a few Native Americans, if only to remind the other jurors that Ms. Thomas was not some abstract cultural archtype that they could direct their fears and frustrations at, but that she was a real human being like they were.
Were there any Native Americans on the jury? In a comment on NewYorkCountryLawyer's blog, [blogger.com] I politely asked what the gender and racial composition of the jury were. He rejected this question, characterizing it as "offensive." "People's lives are at stake in these cases," he offered in self-justification.
Oh really? Let's set aside, for the moment, that the notion of a trial by a jury of her peers is somehow offensive. How does suppressing information about whether there were Native Americans on the jury actually HELP Jammie Thomas? I think suppressing this information actually hurt her, and continues to hurt her.
Racism hurts people in the justice system. Not acknowledging it hurts people even more.
I can't argue with anything you just said. I just didn't want to raise the spectre of racism prior to the trial. I didn't want the RIAA pointing to my blog and accusing it of something.
These jurors have disgraced the American judicial system. It would not surprise me in the least if the type of racism you described was a factor in their "decision", because I -- being a decent human being raised by a human mother -- can't begin to fathom what was.
I wish for each of them that they and their loved ones that they should all wind up in Jammie's seat.
internationally, this success creates a major problem for the RIAA's efforts to get draconian IP laws passed by foreign governments.
There is no doubt in my mind that this is very damaging to the RIAA. That's another example of the point I've been making that they have the dumbest lawyers working for them. They don't know when to stop being greedy; they could easily have asked for a lesser amount, but chose to ask for anything up to the maximum. Now look how much good they have done for their clients.
What I want to know, NYCL, is why the judge didn't bar the RIAA witness from testifying about all that "evidence" that was collected with no safeguards, no peer review, and no anything?
Because the defense lawyers didn't challenge it.
Why, from what I've heard, was only the defendant's expert witness barred from testifying about things?
I've read the judge's decision and I feel that he erred.
Slashdot Mirror
In Capitol Records v. Foster the court awarded $64,000 in attorneys fees against the RIAA, and in Atlantic Recording v. Andersen the court awarded $108,000.
By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.
NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter? Or does it only count if I allow my friend to scan copies of every page? Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on /. -- On the plus side, I can spout off plenty of bad analogies!
It's easy. You just go by what the book says. It says that for there to be a distribution there has to be
-a dissemination of copies
-to the public
-by sale, other transfer of ownership, rental, lease, or lending.
All of the above have to have occurred.
Since none of the above occurred, there is no distribution within the meaning of the Copyright Act.
This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.
It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.
hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.
Don't worry. There is no way on God's green earth that the judge would even consider precluding Ms. Amurao from making a cross-motion for summary judgment. That would be the most flagrant kind of appealable order. The RIAA lawyers' request that Ms. Amurao's cross-motion not be considered by the Court will be denied.
Maybe "the public" has some special meaning in Lawyer Town
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one? Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents).
I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.
By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.
You obviously don't know me. I only make arguments that "hold water". I'm just a country lawyer that wound up in a big city. I don't write the law. I report it.
Maybe "the public" has some special meaning in Lawyer Town
I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.
I wish we had more info on what this "letter to the judge" thing means.
1. A summary judgment motion "searches the record", which means that the Court can grant summary judgment motion AGAINST the party making the motion. I.e., the judge is supposed to search all of the papers, both for and against, and if the moving party's case should be thrown out, the Court should throw the case out.
2. Sometimes, when a party opposing summary judgment feels the other side's case should be thrown out altogether, the party also files a "notice of cross-motion", sometimes he or she doesn't bother.
3. In this case there had been an agreed extension of the time to file "opposition papers".
4. When the RIAA saw that the opposition papers contained a "notice of cross-motion" they complained, saying that the extension of time did not apply to any "cross-motions", and said they would write to the Judge asking her not to consider the "cross-motion".
5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.
With which part of my brief do you disagree?
Nope. That's what baffles me about this. The jury found that she committed copyright infringement, but there was absolutely no evidence presented by the RIAA that showed she ever uploaded to anyone except MediaSentry. It makes no sense.
Actually, there was no showing that she uploaded anything to anyone, and their expert witness admitted as much under cross-examination.
These weren't personal opinions of mine; they are caselaw. Where an "ongoing course of action", rather than specific acts of infringement, is alleged, the operative date relates back to commencement of the ongoing course of action. And the courts have held that the "work" infringed is the album, not the individual songs.
Rather then reading the summary you could read the actual blog post
You must be new here.
AFAIK they only provided evidence that she made the songs available. They could not have provided evidence that anyone but themselves downloaded even part of a song. The whole thing is one big fail if you introduce logic, reasoning and previous interpretations of law.
"logic, reasoning and previous interpretations of law"?
Nah, it'll never work. If you use those, then the RIAA might actually lose.
Tough luck on the verdict, USA. I am laughing at you.
You and everyone else in the world who knows about this.
Hey NYCL, maybe you'd be interested in heading up a campaign to collect some funds from those of us in the know to educate the masses. I know from experience that the biggest problem with these court cases is ignorance. The judges sound like they're catching up, but I believe the persons on jury panels are still ignorant of the real dollar values involved and the facts surrounding the RIAA's abuses of the judicial system. The first thing that comes to mind is that there are scads of advertisements from the MPAA and the RIAA that go to great lengths to equate copyright infringement with criminal theft (a very successful campaign I might point out based upon ignorant comments on this very website). What the world needs right now is not love, but balance. We're lacking *any* kind of counterpoint regarding consumer digital rights. I'd be thrilled to pieces to see one shred of advertisement (a billboard ad, paid ad time on network TV, etc.) that presented the opposition to the RIAA and the MPAA. In short, if someone were to take the lead and head up a group that took funds from the public that were then used in a campaign of this sort, then I would be the first person in line to donate some cash. I know, the EFF is *supposed* to be leading the charge on this, but I've seen not one physical manifestation of their efforts. Advertising on the Internet is cheap...but obviously not as effective as a commercial that equates stealing a car with downloading a song. Anyone?
Everything you say is right, except for the part about me being the one to do it. I'm a lawyer. That's all I am.
Yes, Ray is claiming that all those people did it wrong and I have no idea if he's right. But he is giving a list of arguments to support his point. So if you want to claim that he is wrong, you should show that those arguments are wrong.
My blog post was written specifically to an audience of experienced lawyers. Any regular litigator knows that the procedural errors I pointed out are correct. And any regular copyright lawyer, litigator or not, knows that the substantive legal errors I pointed out are also correct. By saying that you "have no idea if he's right" you are demonstrating intellectual integrity, something in short supply these days. So thank you.
Which part or parts of it do you disagree with?
Read my brief, and get back to me. Tell me which part of it you don't understand.
There is a complete lack of common sense & decency on display here. Makes me worry for America.
You have expressed it very well. Thank you.
Sure, Ray. Whatever. BTW, it WAS an all white jury, according to Ars Technica. In Minnesota, for a Native American, that's a hanging jury.
I guess it was.
The RIAA has been making very telling statements after the verdict.
Yes, it's amusing. They're being quite defensive about it. They've been caught with with their greedy pants down.
I'm perplexed by the statement about the US Supreme Court. The Supreme Court's jurisprudence in the area of knocking down excessive "punitive awards" is well established, and would most assuredly lead to the RIAA's statutory damages theory being crushed. See amicus curiae brief, which summarizes and discusses the applicable authorities.
How Scotus determined it's a Constitutional infraction for a person to receive punitive damages from a company in excess of 10 times actual damages, but thousands of dollars per song is hunky dory?
I don't know where you get that from. The Supreme Court would strike this down in a millisecond. See my brief and cases cited.
Jammie Thomas is an Ojibwa woman living in a state where 89.3% of the population is Caucasian. [census.gov] Yes, there is racism in Minnesota -- not overt, cross-burning, KKK-style racism; but a kind of smug, condescending relegation of non-white people to second-class citizenship; people to be tolerated with feigned PC magnanimity, while hinting that life would be better if they would just all go away, "back to where they came from." Against this backdrop of white Minnesota popular culture, it only stands to reason that Jammie Thomas could not have gotten a fair trial from an all-white jury. For justice to be served, the jury should have included at least a few Native Americans, if only to remind the other jurors that Ms. Thomas was not some abstract cultural archtype that they could direct their fears and frustrations at, but that she was a real human being like they were. Were there any Native Americans on the jury? In a comment on NewYorkCountryLawyer's blog, [blogger.com] I politely asked what the gender and racial composition of the jury were. He rejected this question, characterizing it as "offensive." "People's lives are at stake in these cases," he offered in self-justification. Oh really? Let's set aside, for the moment, that the notion of a trial by a jury of her peers is somehow offensive. How does suppressing information about whether there were Native Americans on the jury actually HELP Jammie Thomas? I think suppressing this information actually hurt her, and continues to hurt her. Racism hurts people in the justice system. Not acknowledging it hurts people even more.
I can't argue with anything you just said. I just didn't want to raise the spectre of racism prior to the trial. I didn't want the RIAA pointing to my blog and accusing it of something.
These jurors have disgraced the American judicial system. It would not surprise me in the least if the type of racism you described was a factor in their "decision", because I -- being a decent human being raised by a human mother -- can't begin to fathom what was.
I wish for each of them that they and their loved ones that they should all wind up in Jammie's seat.
internationally, this success creates a major problem for the RIAA's efforts to get draconian IP laws passed by foreign governments.
There is no doubt in my mind that this is very damaging to the RIAA. That's another example of the point I've been making that they have the dumbest lawyers working for them. They don't know when to stop being greedy; they could easily have asked for a lesser amount, but chose to ask for anything up to the maximum. Now look how much good they have done for their clients.
What I want to know, NYCL, is why the judge didn't bar the RIAA witness from testifying about all that "evidence" that was collected with no safeguards, no peer review, and no anything?
Because the defense lawyers didn't challenge it.
Why, from what I've heard, was only the defendant's expert witness barred from testifying about things?
I've read the judge's decision and I feel that he erred.