I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
That's a good generalization but it'd be bad if it became a fixed rule. It'd be pretty trivial to abuse by using volatile memory as long-term mass storage. It also ignores the matter of virtual memory.
1. Of course it ignores virtual memory, I wasn't talking about virtual memory, I was talking about RAM.
2. To maintain a version in volatile memory would violate other rights which inhere in copyright, but not the copying part.
You know, I can't help wondering if if Judge Gertner is following NYCL's blog and taking notice of some of the more insightful comments there?
Well there are those who have said that the best thing about my blog are the comments. And I will say that the comments on the RIAA's proposed protective order were very helpful to me, and for the most part very well thought out.
As a side note, Peak Electronics was unable to appeal this to the Supreme Court because they ran out of money.
Yes I have always felt MAI was wrongly decided. I hope the Supreme Court gets hold of the issue and reverses MIA. I don't know the procedural context of Cartoon Networks well enough to know whether that issue would be ripe for determination, but if it is, I would like to see them recognize that no 'copy' has been made while something is floating in the ether -- i.e. while it is in RAM.
Your likely right with the videos, and as for play-lists, I am guessing it makes finding deleted data a lot easier if you know the track name that will be neatly in the ID tag within the start of the file.
Means the person can be "done" not only for what they have on their computer, but what they had on their computer as well.
I am guessing it would be a pretty big thing to someone if, questionable, content were found on their drive, and they were told that it had been found, and would be entered into public court documents, might make a person real eager to settle a case.
My opinion of them just reached a whole new order of low, knowing that they have done such a thing, and of the legal system for letting that happen;(
Barny, here's my blog post about the Tennessee case in which they purposely sought to, and did, humiliate a member of the armed services by making a public record of some off color videos he had on his computer. After they'd made the point, and made a public record of the whole thing, they thereafter moved to strike their own irrelevant disclosure. But not until everybody who knew the army sergeant in question knew his embarrassing secret.
I don't care how low your opinion of them gets, you should always make room for it to get lower.
Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases: 1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0 2. Number of times the RIAA's expert witness has been deposed: 1.
Now, I find that remarkable. To be honest, at face value it doesn't speak well for the quality of representation those defendants had.
No it does not. Defendants in RIAA cases have NOT had the quality of representation they need and deserve in order to fight this scourge. Our justice system has let them down.
No, an amicus brief would not usually be the place to put in evidence of that nature, but there have been amicus briefs which discussed factual issues, such as social and economic conditions in society, and things of that nature, which were called "Brandeis briefs", named after late Sup. Ct. Justice Brandeis from his days as an appellate lawyer.
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
That's an easy one:
1. Fishing (maybe they can find some music videos, maybe they can find something the MPAA can use, etc.)
2. Blackmail (in a Tennessee case they got a copy of the guy's hard drive, were allowed to rummage through it, found some legal but pornographic videos, and used them to blackmail him into a settlement).
Here, here. As someone else who works with digital forensics, I agree--it's a "touchy mistress" that has been abused all to hell in the RIAA cases. As a casual observer to the whole *IAA thing, it looks as if they were pushing sloppy, shoddy work on the court as an airtight case...and it's catching up with them.
Since the standard practices of digital forensics are fairly common, accepted, and (to techies) obvious, you would think that they would take the time to do the job right, push through those cases that cemented their reputation as solid litigators; their reputations would have preceded them, and they could have had a few big-time early successes to browbeat future defendants.
Instead, my horseback opinion is that they decided to go for quantity over quality. Judges and defendants rolled over under a wave of "techie-stuff", because it sounded good. But Media Sentry (or whatever they are calling themselves now, or whomever the RIAA is using), kept getting caught doing short-cut work, and the plaintiffs kept running with it (probably knowing it was crap.
Now, everyone is getting comfortable with terms like "forensic copying," "hashes", "ip addresses", and "p2p software." And those previous cases are looking weaker and weaker.
Sorry for the rant; as someone who works in the evidence field (and takes pride in doing it right--not fast or biased), I applaud NewYorkCountryLawyer's work on this, and I'm glad a lot of bad courtroom maneuvering is getting exposed.
Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases:
1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0
2. Number of times the RIAA's expert witness has been deposed: 1.
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case,
Great! We can we can just cut-n-paste yours and fill it in with our own points.
Thanks for bringing a smile to my weary face. You deserved your "Funny" mod.
When you load it into RAM, you have made a copy for purposes of copyright law.
That is simply not true. See, e.g. the Cartoon Networks which held that copies in RAM and buffered for 1.2 seconds were not in RAM for a long enough period to be considered "copies" under the Copyright Act. I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
A judge used the term "metadata" correctly. That is a good technical concept to grasp. We geeks and our friends like NYCL (who may also be a geek - not trying to exclude) have been bandying it about for years, but to 99% of the population it is a pretty foreign term.
Each example like this implies that the judicial is growing more familiar with technical concepts. That makes me happy.:)
Just out of curiosity,Ray, if one were so inclined, how could an individual (or group) file an amicus brief with a court? Is there a boilerplate example to reference?
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case, on the subject of the due process evaluation of the RIAA's statutory damages theory. Here and here.
It seems as though that the judges in these cases are becoming more educated as to the technical aspects of this case and P2P filesharing in general. This can only mean that the RIAA's tactics will be scruntized more closely by the court than ever before. This can only be a good thing for defendants in these cases. If the defense prevails, this is the start to the end of this mess for once-and-for-all. Thanks to NewYorkCountryLawyer for keeping us on top of this.
This judge seems to be much more on top of the legal issues than she was in the early years. For 4 years she presided over uncontested cases. Then when some lawyering finally appeared for a couple of Boston University students named as "John Doe" defendants, and briefed some of the flaws in the RIAA's cases, the judge seemed to become more vigilant. It all proves the point that we have an adversarial system; the judges usually rely on zealous, competent lawyering from both sides. When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
There have been a couple of judges who refused to rubber stamp the RIAA's chicanery --Judge Arterton in CT, Judge Brewster in CA, Judge Kelley in VA, Judge Otero in CA, and several judges in Austin TX come to mind -- but usually it doesn't work that way.
Well they don't produce the music at all. The performer and the producer, neither of whom are employed by the record company, produce the music. And I would say that most artists and producers today know that their future is not with the Big 4; it's with the world of digital music. Their managers certainly know that.
It can be expressed much more simply: these companies have been destroyed by their own insatiable greed. They have been ruthlessly exploiting musicians for many decades, and they have always sought to fleece, rather than provide value to, their customers. Now that they are no longer monopolies, they have zero 'goodwill' to tide them over.
Unfortunately, the RIAA interprets your "not buying their music" as being the same as "another Internet pirate illegally downloading/sharing their music." After all, they reason, their music is vital to everyone's life and anyone who doesn't buy the minimum that the RIAA deems necessary must be pirating the rest. (This comment would be going for the Funny tag if it weren't true.)
Yes it is true. But I think it's really just a handful of executives. The same ones who never figured out how to make money on the internet. So to make themselves look better, they are trying to scapegoat copyright infringement. The record companies' real enemy is obsolescence.
I think the RIAA's efforts are "cut from whole cloth". They don't care about 3 strikes or doing an upstanding investigation, that's all window dressing to them, hoops to be endured, wide spots on the road to their real destination.
The real object is to kill the Internet. Kicking everyone off is one way to do it. They'd absolutely love a mistake that chopped thousands of people's access over one alleged infraction, as long as it didn't start a successful revolt. If they thought it could be done, they would cut to the chase and demand the courts and legislators shut down the whole Internet for aiding and abetting the crime of copyright infringement. Then there'd be no need to fool around with 3 strikes per person and investigations and such nonsense.
I would say you have their number. The internet happened while they weren't paying attention; now they want to bully their way into controlling it.
I think that RIAA and MPAA are anti-freemarket organizations
Definitely. The 4 big labels and 6 big motion picture companies, who are supposed to be competitors, do everything in collusion. And when they are beaten in the marketplace they go running to their friends in government to strongarm their competition. Their monopolies are becoming more and more worthless, because of (a) the ability of musicians to market their music directly to their fans, and (b) the ability of filmmakers to find an audience online. And so they are running to their friends in government, because competition -- the "free market" -- is anathema to them.
I have a very hard time believing he is truly "not familiar with the facts of this particular case," given how many comments he has made on his blog [blogspot.com] and in various Slashdot forums on the subject
Name one comment I have made anywhere in which I professed familiarity with the facts of the case.
Is this the kind of justice we can expect in America? Having your life financially ruined by astronomical damages for copying songs?! How can any sane judge with any sense of justice even allow this to continue?
This particular judge seems to be aware of the problem. On September 24, 2008, he wrote:
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs."
Reading the Toder memorandum, it seems that Ja[m]mie's lawyer isn't getting paid.
That's what it's all about. Most lawyers, like most other people, don't like to work if they're not getting paid for it (unless that's what they agreed to do, which he didn't). Lawyers like anyone else have families to support and bills to be paid.
I included enough to establish context. You left out the sarcastic ending, "nice of them". Had I simply quoted that last sentence, it wouldn't have been clear how it meshed with the rest.
I get the idea that I should have saved this criticism for a less-well-known submitter who isn't put on a podium by moderators. I really appreciate having NewYorkCountryLawyer as a contributor to Slashdot, but I wasn't going to play favorites when criticising a common practice in article summaries.
NewYorkCountryLawyer does have a point that I really should criticize the editors, as they are the ultimate gatekeepers. So in retrospect, I apologize for the criticism and hope to better target it in the future.
It doesn't matter how "well-known" I am, or in what regard I am held. If I was wrong I was wrong. Maybe it wasn't the apex of journalism to throw in my comment "Nice of them"; but it was hard for me to resist after explaining that the RIAA's position was:
1. OK for her to have no lawyer to help her. 2. Not OK for her to be able to (a) find a new lawyer, (b) give her new lawyer enough time to prepare, or (c) if she can't find a lawyer, for her to prepare. 3. ???? 4. Profit!
Slashdot Mirror
When the RIAA hires Jack Bauer, be afraid, be very afraid...
Jack wouldn't work for them; that would be like working for BlackHawk. He would be working for us.
I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
That's a good generalization but it'd be bad if it became a fixed rule. It'd be pretty trivial to abuse by using volatile memory as long-term mass storage. It also ignores the matter of virtual memory.
1. Of course it ignores virtual memory, I wasn't talking about virtual memory, I was talking about RAM.
2. To maintain a version in volatile memory would violate other rights which inhere in copyright, but not the copying part.
You know, I can't help wondering if if Judge Gertner is following NYCL's blog and taking notice of some of the more insightful comments there?
Well there are those who have said that the best thing about my blog are the comments. And I will say that the comments on the RIAA's proposed protective order were very helpful to me, and for the most part very well thought out.
As a side note, Peak Electronics was unable to appeal this to the Supreme Court because they ran out of money.
Yes I have always felt MAI was wrongly decided. I hope the Supreme Court gets hold of the issue and reverses MIA. I don't know the procedural context of Cartoon Networks well enough to know whether that issue would be ripe for determination, but if it is, I would like to see them recognize that no 'copy' has been made while something is floating in the ether -- i.e. while it is in RAM.
Your likely right with the videos, and as for play-lists, I am guessing it makes finding deleted data a lot easier if you know the track name that will be neatly in the ID tag within the start of the file. Means the person can be "done" not only for what they have on their computer, but what they had on their computer as well. I am guessing it would be a pretty big thing to someone if, questionable, content were found on their drive, and they were told that it had been found, and would be entered into public court documents, might make a person real eager to settle a case. My opinion of them just reached a whole new order of low, knowing that they have done such a thing, and of the legal system for letting that happen ;(
Barny, here's my blog post about the Tennessee case in which they purposely sought to, and did, humiliate a member of the armed services by making a public record of some off color videos he had on his computer. After they'd made the point, and made a public record of the whole thing, they thereafter moved to strike their own irrelevant disclosure. But not until everybody who knew the army sergeant in question knew his embarrassing secret.
I don't care how low your opinion of them gets, you should always make room for it to get lower.
Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases: 1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0 2. Number of times the RIAA's expert witness has been deposed: 1.
Now, I find that remarkable. To be honest, at face value it doesn't speak well for the quality of representation those defendants had.
No it does not. Defendants in RIAA cases have NOT had the quality of representation they need and deserve in order to fight this scourge. Our justice system has let them down.
No, an amicus brief would not usually be the place to put in evidence of that nature, but there have been amicus briefs which discussed factual issues, such as social and economic conditions in society, and things of that nature, which were called "Brandeis briefs", named after late Sup. Ct. Justice Brandeis from his days as an appellate lawyer.
What do you think they were up to in trying to get access to videos? I can imagine why they might want to see playlists, but videos can't possibly bear on the RIAA's case since they don't represent video owners. Are they in cahoots with the MPAA? Fishing for something embarassing ("The defendant is obviously a scumbag: we found 'Debbie Does Dallas' on her hard drive.")?
That's an easy one:
1. Fishing (maybe they can find some music videos, maybe they can find something the MPAA can use, etc.)
2. Blackmail (in a Tennessee case they got a copy of the guy's hard drive, were allowed to rummage through it, found some legal but pornographic videos, and used them to blackmail him into a settlement).
Here, here. As someone else who works with digital forensics, I agree--it's a "touchy mistress" that has been abused all to hell in the RIAA cases. As a casual observer to the whole *IAA thing, it looks as if they were pushing sloppy, shoddy work on the court as an airtight case...and it's catching up with them. Since the standard practices of digital forensics are fairly common, accepted, and (to techies) obvious, you would think that they would take the time to do the job right, push through those cases that cemented their reputation as solid litigators; their reputations would have preceded them, and they could have had a few big-time early successes to browbeat future defendants. Instead, my horseback opinion is that they decided to go for quantity over quality. Judges and defendants rolled over under a wave of "techie-stuff", because it sounded good. But Media Sentry (or whatever they are calling themselves now, or whomever the RIAA is using), kept getting caught doing short-cut work, and the plaintiffs kept running with it (probably knowing it was crap. Now, everyone is getting comfortable with terms like "forensic copying," "hashes", "ip addresses", and "p2p software." And those previous cases are looking weaker and weaker. Sorry for the rant; as someone who works in the evidence field (and takes pride in doing it right--not fast or biased), I applaud NewYorkCountryLawyer's work on this, and I'm glad a lot of bad courtroom maneuvering is getting exposed.
Thing is, the RIAA's "junk science" never gets challenged. Here are the statistics for ~40,000 cases:
1. Number of times the RIAA's "investigator" and sole witness has been deposed: 0
2. Number of times the RIAA's expert witness has been deposed: 1.
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case,
Great! We can we can just cut-n-paste yours and fill it in with our own points.
Thanks for bringing a smile to my weary face. You deserved your "Funny" mod.
When you load it into RAM, you have made a copy for purposes of copyright law.
That is simply not true. See, e.g. the Cartoon Networks which held that copies in RAM and buffered for 1.2 seconds were not in RAM for a long enough period to be considered "copies" under the Copyright Act. I personally think that copies which exist only in RAM should not be considered copies at all, but we would need the Supreme Court to reach that question to know for sure.
A judge used the term "metadata" correctly. That is a good technical concept to grasp. We geeks and our friends like NYCL (who may also be a geek - not trying to exclude) have been bandying it about for years, but to 99% of the population it is a pretty foreign term. Each example like this implies that the judicial is growing more familiar with technical concepts. That makes me happy. :)
Let us hope that that is the case.
Just out of curiosity,Ray, if one were so inclined, how could an individual (or group) file an amicus brief with a court? Is there a boilerplate example to reference?
There's no such thing as boilerplate, the way I look at it. Legal documents have consequences, and need to be drafted with reference to the situation at hand. I have actually submitted an amicus brief, and a revised amicus brief, in this very case, on the subject of the due process evaluation of the RIAA's statutory damages theory. Here and here.
Any lawyer that can't come up with a production order that sticks to court ordered criteria should be sanctioned on the spot.
I agree with you. I would come down very hard on attorneys who try to game the system as the RIAA's attorneys do, were I a judge.
It seems as though that the judges in these cases are becoming more educated as to the technical aspects of this case and P2P filesharing in general. This can only mean that the RIAA's tactics will be scruntized more closely by the court than ever before. This can only be a good thing for defendants in these cases. If the defense prevails, this is the start to the end of this mess for once-and-for-all. Thanks to NewYorkCountryLawyer for keeping us on top of this.
This judge seems to be much more on top of the legal issues than she was in the early years. For 4 years she presided over uncontested cases. Then when some lawyering finally appeared for a couple of Boston University students named as "John Doe" defendants, and briefed some of the flaws in the RIAA's cases, the judge seemed to become more vigilant. It all proves the point that we have an adversarial system; the judges usually rely on zealous, competent lawyering from both sides. When one side can't afford to get good legal representation, the judge doesn't get to see the whole picture.
There have been a couple of judges who refused to rubber stamp the RIAA's chicanery --Judge Arterton in CT, Judge Brewster in CA, Judge Kelley in VA, Judge Otero in CA, and several judges in Austin TX come to mind -- but usually it doesn't work that way.
Or the pathetic music they are producing?
Well they don't produce the music at all. The performer and the producer, neither of whom are employed by the record company, produce the music. And I would say that most artists and producers today know that their future is not with the Big 4; it's with the world of digital music. Their managers certainly know that.
It can be expressed much more simply: these companies have been destroyed by their own insatiable greed. They have been ruthlessly exploiting musicians for many decades, and they have always sought to fleece, rather than provide value to, their customers. Now that they are no longer monopolies, they have zero 'goodwill' to tide them over.
Unfortunately, the RIAA interprets your "not buying their music" as being the same as "another Internet pirate illegally downloading/sharing their music." After all, they reason, their music is vital to everyone's life and anyone who doesn't buy the minimum that the RIAA deems necessary must be pirating the rest. (This comment would be going for the Funny tag if it weren't true.)
Yes it is true. But I think it's really just a handful of executives. The same ones who never figured out how to make money on the internet. So to make themselves look better, they are trying to scapegoat copyright infringement. The record companies' real enemy is obsolescence.
I think the RIAA's efforts are "cut from whole cloth". They don't care about 3 strikes or doing an upstanding investigation, that's all window dressing to them, hoops to be endured, wide spots on the road to their real destination. The real object is to kill the Internet. Kicking everyone off is one way to do it. They'd absolutely love a mistake that chopped thousands of people's access over one alleged infraction, as long as it didn't start a successful revolt. If they thought it could be done, they would cut to the chase and demand the courts and legislators shut down the whole Internet for aiding and abetting the crime of copyright infringement. Then there'd be no need to fool around with 3 strikes per person and investigations and such nonsense.
I would say you have their number. The internet happened while they weren't paying attention; now they want to bully their way into controlling it.
Definitely. The 4 big labels and 6 big motion picture companies, who are supposed to be competitors, do everything in collusion. And when they are beaten in the marketplace they go running to their friends in government to strongarm their competition. Their monopolies are becoming more and more worthless, because of (a) the ability of musicians to market their music directly to their fans, and (b) the ability of filmmakers to find an audience online. And so they are running to their friends in government, because competition -- the "free market" -- is anathema to them.
Why would they object to a continuance if they really think they can win?
You've hit the nail on the head. The one thing they fear the most is a fair fight.
I have a very hard time believing he is truly "not familiar with the facts of this particular case," given how many comments he has made on his blog [blogspot.com] and in various Slashdot forums on the subject
Name one comment I have made anywhere in which I professed familiarity with the facts of the case.
Is this the kind of justice we can expect in America? Having your life financially ruined by astronomical damages for copying songs?! How can any sane judge with any sense of justice even allow this to continue?
This particular judge seems to be aware of the problem. On September 24, 2008, he wrote:
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs."
Reading the Toder memorandum, it seems that Ja[m]mie's lawyer isn't getting paid.
That's what it's all about. Most lawyers, like most other people, don't like to work if they're not getting paid for it (unless that's what they agreed to do, which he didn't). Lawyers like anyone else have families to support and bills to be paid.
I included enough to establish context. You left out the sarcastic ending, "nice of them". Had I simply quoted that last sentence, it wouldn't have been clear how it meshed with the rest. I get the idea that I should have saved this criticism for a less-well-known submitter who isn't put on a podium by moderators. I really appreciate having NewYorkCountryLawyer as a contributor to Slashdot, but I wasn't going to play favorites when criticising a common practice in article summaries. NewYorkCountryLawyer does have a point that I really should criticize the editors, as they are the ultimate gatekeepers. So in retrospect, I apologize for the criticism and hope to better target it in the future.
It doesn't matter how "well-known" I am, or in what regard I am held. If I was wrong I was wrong. Maybe it wasn't the apex of journalism to throw in my comment "Nice of them"; but it was hard for me to resist after explaining that the RIAA's position was:
1. OK for her to have no lawyer to help her.
2. Not OK for her to be able to (a) find a new lawyer, (b) give her new lawyer enough time to prepare, or (c) if she can't find a lawyer, for her to prepare.
3. ????
4. Profit!
After all, I have to have some fun, too.