the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory
I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.
So which is it?
Fair question. Let me clarify.
I have never expressed any opinion about the underlying facts. I.e., I don't know what Ms. Thomas did or didn't do, or what was going on with her computer, etc.
I do know that (a) Jacobson's testimony, upon which plaintiffs' entire case rested, was bogus and inadmissible; (b) the plaintiffs' legal theory, which has now been rejected by the Court, was bogus; (c) plaintiffs have no evidence that defendant was a "distributor'; and (d) their statutory damages theory is unlikely to pass constitutional muster.
If you have some opinion on the topic, reply like everyone else.
Usually I just report facts. Occasionally I put in an opinion, clearly identifiable as such. The Slashdot editors would take it out, or reject the story altogether, if they found it inappropriate. If you find it inappropriate, sorry.
When your lawyer won't even stick around to see you get torn apart in the courtroom, perhaps it's time to cut a deal.
I'm sure she tried hard to do that. But what the RIAA has no doubt done is to raise the settlement bar to a number she can't afford. Partly out of retribution. Partly out of a desire not to see the case settle at this juncture, because, in its present posture, the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory. Partly because they know she's defenseless, having either no lawyer or having a lawyer who's there only involuntarily.
I know these guys. This is how they work. They smell blood.
Thanks for the referral, eldavojohn, but I'm not in a position to take on additional nonbillable work at the moment. He should go to Volunteer Lawyers for the Arts, they might be able to find him a volunteer attorney in a case like this one.
Perhaps they've colluded in order to get the courts to arrive at a decision that is anti-consumer.
If so, they've done a pretty poor job. The circuit court decision is pretty good
1) It rejects the notion that buffering a work necessarily infringes on the reproduction right. (that doctrine would make playing most digital media a reproduction, giving legal teeth to playback restrictions)
2) It rejects (following Netcom) direct liability for the operator of a system which makes copies automatically at the request of someone else.
3) It rejects broad readings of the "public performance" clause which says that all commercial performances are public, and that multiple performances of the a work to individuals, even if based off different copies of the same work, constitute public performance. (Remember the claims that Kindle text-to-speech constitutes public performance? This decision cuts the legs out from most such arguments)
russotto, your posts here have been excellent!!! I hope you get modded up as you deserve!!!
The law lags so far behind software development, I don't consider any of it relevant.
Well you'd find it highly relevant if you got skewered, like the defendant in MAI, because the 9th Circuit judges just didn't understand. You should be aware of the fact, and appreciate the fact, that the 2nd Circuit judges in the Cartoon Networks case took the time to be a little better informed and make a little bit more realistic assessment. Like it or not, the law is relevant to all of our lives, so we all have an interest in helping it to become as rational and fair as possible. (Unlike the MPAA and RIAA whose apparent goal in life these days is to distort the law, and make it as irrational and unfair as possible.).
Well I personally think you're all missing the point here.
There was a bad case, the MAI Systems case -- which most lawyers knew was wrong legally, and most programmers and other tech people knew was very very wrong in the real world -- which held that even a copy which existed nowhere except in RAM was a "copy" within the meaning of the Copyright Act. In MAI
defendant Peak Computer, Inc., performed
maintenance and repairs on computers made and sold by MAI
Systems. In order to service a customer's computer, a Peak
employee had to operate the computer and run the computer's
copyrighted operating system software. See MAI Sys., 991 F.2d at
513. The issue in MAI Systems was whether, by loading the
software into the computer's RAM,1 the repairman created a "copy"
as defined in 101. See id. at 517. The resolution of this
issue turned on whether the software's embodiment in the
computer's RAM was "fixed," within the meaning of the same
section.
The Ninth Circuit concluded, in my view unfairly, that
by showing that Peak loads the software into the RAM and is
then able to view the system error log and diagnose the
problem with the computer, MAI has adequately shown that the
representation created in the RAM is "sufficiently permanent
or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory
duration"
and that the RAM version was therefore a "copy" even though it existed nowhere in a fixed format.
The Cartoon Networks case, as I read it, greatly limits the damaging effect of the MAI case. Do you disagree?
I'm surprised that there isn't more interest in the main issue in the case, the question of what is a "transitory" copy.... especially among you software developers out there!
By the way, here's an article I wrote for the Journal of Internet Law, which discusses, at page 19, the main issue in the Cartoon Networks case which is "When is a copy transitory?" And here's an editorial comment I wrote for my blog after learning of the Cartoon Networks decision.
Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me
This program was totally optional. It would be you, the consumer, saving the show. If you didn't want them storing it for you it wouldn't be stored. It's only at your request.
We had a symposium on this issue, and a lawyer talked from the plaintiff's side. Much of their theory dealt with the length of the cable, based purely on a statutory reading. While I understand he has a duty to attempt to apply the statute in his client's best interests, his construction made little sense. Still, he had to rely on that construction to get around Sony. Essentially, it is legal for me to time shift in my house. So why can't I put my time shift device outside of my house, say in a warehouse with a lot of other time shift devices? And what if I make those time shift devices virtual devices on a single server? His point was that moving the device outside of my house was the difference-it became a transmission. He could not provide a length of cable that would trigger that definition, though. And, of course, he was speaking for his client at the time. I will be curious to see how this case works out if SCOTUS does take it. The statutes need some re-writing, honestly.
Yes but the whole time-shifting issue has to do with fair use, which was taken out of the case by stipulation. Note that the 2nd Circuit decision doesn't discuss that issue at all other than to mention that the issue is not before them.
If I'm either party, and I want the Supreme Court to decide an issue for me that I think I'll win, I'm going to work with the other side to waive the legal doctrines which best protect me. I don't want them to say "fair use" or "secondary infringement." Perhaps Cablevision wants to set up a decision granting more protection to content providers, just as the MPAA wants to set up a decision expanding the definition of primary infringement to include what Cablevision did.
With the Supremes taking so few cases, it makes sense to give them an extremely narrow legal issue, on a platter, freed, as much as possible, of its factual trappings.
1. I'm not sure I understand your theory as to why both sides waived their best arguments. But I sure would love to have been a fly on the wall when those decisions were made.
2. The issues were narrowed by stipulation earlier in the case, before it got to the Second Circuit. The Second Circuit had to take the case; it was an appeal as of right. So this narrowing had nothing to do with getting Supreme Court review.
I do... acknowledge there are some [lawyers] who are quite reputable and decent human beings. NYCL appears to be so. But the only instance where I can see someone appreciating a lawyer is where they render a service the person voluntarily decided they needed and were aware and satisfied of the cost of up front.
Otherwise, it's kind of like colonoscopy doctors. I doubt anyone likes them either.
I love my colonoscopy doctor. His goal is to save my life, and he may well do that for me one of these days.
One of the best things about my doctors is that the bulk of their fee is paid by a third party, a health insurer. Our society would probably be a lot better off if something like that existed for legal needs as well. There are some prepaid legal plans, but not enough. And people who cannot afford legal representation should, at least in certain areas, have free lawyers appointed for them.
You just have to get more familiar with the lingo, Ray. They have discontinued the practice of bringing "new" lawsuits, but will indeed continue in the finely honed craft of suing the living shit out of John Doe.
So i.e. they're still working on perfecting the "old" one, which had never been well crafted in its inception?
Or it could be that they will no longer initiate lawsuits in August. Company vacation time and whatnot.
I see, they discontinued suing in August, but will continue suing September through July?
Besides, does anyone REALLY want to argue that the definition of those words are really all that concrete? Those are GOOD words. Good words are like good whores--just don't think they won't put on a completely different show for the next customer at the same price.
I see that your time here at Slashdot has been productive, and served you well, and that you have learned the wisdom of the ancient ones. Thank you for sharing. I think I understand now.
The best way I know of to do that is before buying any cd or mp3 go to RIAA Radar and make sure that the label is not a member of the RIAA... and of course to (a) spread awareness of the site, and (b) help the site out financially.
Is Bainwol -- the guy who lied to Congress -- a lawyer? This brief biographical sketch shows him to be a Republican party operative, but doesn't mention any work as a lawyer.
The story isn't about them continuing to bring lawsuits. That would be like the Saturday Night Live bit with Chevy Chase where he would announce that Francisco Franco is "still dead".
The story is about them lying to Congress.
They represented to the House and Senate Judiciary Committees that they had "discontinued initiating new lawsuits in August". That was a flat out, bald faced, lie.
Nope. Believe it or not, they were telling the truth, and it still applies. This is possible due to a little-known law enacted in the summer of 1837, which states that lawsuits are not really considered to be lawsuits, if they're brought against defenseless pensioners who have no idea what the charge means, much less how to defend themselves against it.
Thank you so much for the explanation; I never would have known.
And here I thought Mitch Bainwol was a lying, yellow bellied piece of garbage.
Judges are allowed to do their own legal research. Excluding blogs from that research is arbitrary and stupid. It is not uncommon for an important piece of precedent to be dug up by a Judge's young law clerk. It is not even very uncommon for that same piece of precedent to be completely overlooked by the lawyers on the case. The Judge can still use it even if the lawyers didn't.
In fact, quite recently, a jury verdict was set aside by the judge on his own motion because neither side's lawyers had brought to his attention a controlling contrary authority. The judge found the decision on his own. While I have no idea how he became alerted to the case which the lawyers had overlooked, if it had occurred through his or his law clerk's having read a law blog which mentioned the case -- even one which had criticized the judge's earlier, incorrect, ruling -- that would have been a good thing, not a bad thing, because it would have meant the correct law being applied, rather than an injustice being perpetrated.
Judges are allowed to do their own legal research. Excluding blogs from that research is arbitrary and stupid. It is not uncommon for an important piece of precedent to be dug up by a Judge's young law clerk. It is not even very uncommon for that same piece of precedent to be completely overlooked by the lawyers on the case. The Judge can still use it even if the lawyers didn't.
I agree with you. I think the article is illogical in the extreme. It treats judges as though they are jurors. And it treats articles on law blogs differently than the countless articles lawyers write in all kinds of publications, both print and online.
Slashdot Mirror
the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory
I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.
So which is it?
Fair question. Let me clarify.
I have never expressed any opinion about the underlying facts. I.e., I don't know what Ms. Thomas did or didn't do, or what was going on with her computer, etc.
I do know that (a) Jacobson's testimony, upon which plaintiffs' entire case rested, was bogus and inadmissible; (b) the plaintiffs' legal theory, which has now been rejected by the Court, was bogus; (c) plaintiffs have no evidence that defendant was a "distributor'; and (d) their statutory damages theory is unlikely to pass constitutional muster.
If you have some opinion on the topic, reply like everyone else.
Usually I just report facts. Occasionally I put in an opinion, clearly identifiable as such. The Slashdot editors would take it out, or reject the story altogether, if they found it inappropriate. If you find it inappropriate, sorry.
I'm not trying to be a troll, and I happen to dislike (and disagree with) the RIAA and their tactics as much as anyone else here. But....
I suspect you are a troll, but...
1. He is leaving because he hasn't been paid.
2. I have never expressed any opinion about the underlying case; I am not familiar with the facts of this particular case.
When your lawyer won't even stick around to see you get torn apart in the courtroom, perhaps it's time to cut a deal.
I'm sure she tried hard to do that. But what the RIAA has no doubt done is to raise the settlement bar to a number she can't afford. Partly out of retribution. Partly out of a desire not to see the case settle at this juncture, because, in its present posture, the case is an embarrassment to the RIAA and a stern rebuke to their moronic legal theory. Partly because they know she's defenseless, having either no lawyer or having a lawyer who's there only involuntarily.
I know these guys. This is how they work. They smell blood.
In a case of this nature, the guy's best bet is, in my opinion, Volunteer Lawyers for the Arts or EFF.
Thanks for the referral, eldavojohn, but I'm not in a position to take on additional nonbillable work at the moment. He should go to Volunteer Lawyers for the Arts, they might be able to find him a volunteer attorney in a case like this one.
Perhaps they've colluded in order to get the courts to arrive at a decision that is anti-consumer.
If so, they've done a pretty poor job. The circuit court decision is pretty good 1) It rejects the notion that buffering a work necessarily infringes on the reproduction right. (that doctrine would make playing most digital media a reproduction, giving legal teeth to playback restrictions) 2) It rejects (following Netcom) direct liability for the operator of a system which makes copies automatically at the request of someone else. 3) It rejects broad readings of the "public performance" clause which says that all commercial performances are public, and that multiple performances of the a work to individuals, even if based off different copies of the same work, constitute public performance. (Remember the claims that Kindle text-to-speech constitutes public performance? This decision cuts the legs out from most such arguments)
russotto, your posts here have been excellent!!! I hope you get modded up as you deserve!!!
The law lags so far behind software development, I don't consider any of it relevant.
Well you'd find it highly relevant if you got skewered, like the defendant in MAI, because the 9th Circuit judges just didn't understand. You should be aware of the fact, and appreciate the fact, that the 2nd Circuit judges in the Cartoon Networks case took the time to be a little better informed and make a little bit more realistic assessment. Like it or not, the law is relevant to all of our lives, so we all have an interest in helping it to become as rational and fair as possible. (Unlike the MPAA and RIAA whose apparent goal in life these days is to distort the law, and make it as irrational and unfair as possible.).
There was a bad case, the MAI Systems case -- which most lawyers knew was wrong legally, and most programmers and other tech people knew was very very wrong in the real world -- which held that even a copy which existed nowhere except in RAM was a "copy" within the meaning of the Copyright Act. In MAI
defendant Peak Computer, Inc., performed maintenance and repairs on computers made and sold by MAI Systems. In order to service a customer's computer, a Peak employee had to operate the computer and run the computer's copyrighted operating system software. See MAI Sys., 991 F.2d at 513. The issue in MAI Systems was whether, by loading the software into the computer's RAM,1 the repairman created a "copy" as defined in 101. See id. at 517. The resolution of this issue turned on whether the software's embodiment in the computer's RAM was "fixed," within the meaning of the same section.
The Ninth Circuit concluded, in my view unfairly, that
by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer, MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration"
and that the RAM version was therefore a "copy" even though it existed nowhere in a fixed format.
The Cartoon Networks case, as I read it, greatly limits the damaging effect of the MAI case. Do you disagree?
I'm surprised that there isn't more interest in the main issue in the case, the question of what is a "transitory" copy.... especially among you software developers out there!
By the way, here's an article I wrote for the Journal of Internet Law, which discusses, at page 19, the main issue in the Cartoon Networks case which is "When is a copy transitory?" And here's an editorial comment I wrote for my blog after learning of the Cartoon Networks decision.
I wonder what would have happened if someone had filed an Amicus curiae in this case stating either (or both) of the low hanging fruit defenses.
That would be out of the question. If the parties stipulated to waive certain issues, an amicus could not re-inject it.
Bad enough my cable company can figure out what I watch: I don't want them storing my stuff for me
This program was totally optional. It would be you, the consumer, saving the show. If you didn't want them storing it for you it wouldn't be stored. It's only at your request.
We had a symposium on this issue, and a lawyer talked from the plaintiff's side. Much of their theory dealt with the length of the cable, based purely on a statutory reading. While I understand he has a duty to attempt to apply the statute in his client's best interests, his construction made little sense. Still, he had to rely on that construction to get around Sony. Essentially, it is legal for me to time shift in my house. So why can't I put my time shift device outside of my house, say in a warehouse with a lot of other time shift devices? And what if I make those time shift devices virtual devices on a single server? His point was that moving the device outside of my house was the difference-it became a transmission. He could not provide a length of cable that would trigger that definition, though. And, of course, he was speaking for his client at the time. I will be curious to see how this case works out if SCOTUS does take it. The statutes need some re-writing, honestly.
Yes but the whole time-shifting issue has to do with fair use, which was taken out of the case by stipulation. Note that the 2nd Circuit decision doesn't discuss that issue at all other than to mention that the issue is not before them.
If I'm either party, and I want the Supreme Court to decide an issue for me that I think I'll win, I'm going to work with the other side to waive the legal doctrines which best protect me. I don't want them to say "fair use" or "secondary infringement." Perhaps Cablevision wants to set up a decision granting more protection to content providers, just as the MPAA wants to set up a decision expanding the definition of primary infringement to include what Cablevision did. With the Supremes taking so few cases, it makes sense to give them an extremely narrow legal issue, on a platter, freed, as much as possible, of its factual trappings.
1. I'm not sure I understand your theory as to why both sides waived their best arguments. But I sure would love to have been a fly on the wall when those decisions were made.
2. The issues were narrowed by stipulation earlier in the case, before it got to the Second Circuit. The Second Circuit had to take the case; it was an appeal as of right. So this narrowing had nothing to do with getting Supreme Court review.
I do... acknowledge there are some [lawyers] who are quite reputable and decent human beings. NYCL appears to be so. But the only instance where I can see someone appreciating a lawyer is where they render a service the person voluntarily decided they needed and were aware and satisfied of the cost of up front. Otherwise, it's kind of like colonoscopy doctors. I doubt anyone likes them either.
I love my colonoscopy doctor. His goal is to save my life, and he may well do that for me one of these days.
One of the best things about my doctors is that the bulk of their fee is paid by a third party, a health insurer. Our society would probably be a lot better off if something like that existed for legal needs as well. There are some prepaid legal plans, but not enough. And people who cannot afford legal representation should, at least in certain areas, have free lawyers appointed for them.
You just have to get more familiar with the lingo, Ray. They have discontinued the practice of bringing "new" lawsuits, but will indeed continue in the finely honed craft of suing the living shit out of John Doe.
So i.e. they're still working on perfecting the "old" one, which had never been well crafted in its inception?
Or it could be that they will no longer initiate lawsuits in August. Company vacation time and whatnot.
I see, they discontinued suing in August, but will continue suing September through July?
Besides, does anyone REALLY want to argue that the definition of those words are really all that concrete? Those are GOOD words. Good words are like good whores--just don't think they won't put on a completely different show for the next customer at the same price.
I see that your time here at Slashdot has been productive, and served you well, and that you have learned the wisdom of the ancient ones. Thank you for sharing. I think I understand now.
Cowboy Neal is writing their press releases.
We need to wipe out RIAA's financing!
The best way I know of to do that is before buying any cd or mp3 go to RIAA Radar and make sure that the label is not a member of the RIAA... and of course to (a) spread awareness of the site, and (b) help the site out financially.
Here is Bainwol's bio; he's not a lawyer.
Is Bainwol -- the guy who lied to Congress -- a lawyer? This brief biographical sketch shows him to be a Republican party operative, but doesn't mention any work as a lawyer.
The story isn't about them continuing to bring lawsuits. That would be like the Saturday Night Live bit with Chevy Chase where he would announce that Francisco Franco is "still dead".
The story is about them lying to Congress.
They represented to the House and Senate Judiciary Committees that they had "discontinued initiating new lawsuits in August". That was a flat out, bald faced, lie.
What I don't understand is why the RIAA is conducting these lawsuits in a quasi-stealth mode.
I'm guessing it's because they promised some politicians they would stop, but they can't get over their addiction to picking on defenseless people.
Nope. Believe it or not, they were telling the truth, and it still applies. This is possible due to a little-known law enacted in the summer of 1837, which states that lawsuits are not really considered to be lawsuits, if they're brought against defenseless pensioners who have no idea what the charge means, much less how to defend themselves against it.
Thank you so much for the explanation; I never would have known.
And here I thought Mitch Bainwol was a lying, yellow bellied piece of garbage.
Boy did I have him wrong.
Judges are allowed to do their own legal research. Excluding blogs from that research is arbitrary and stupid. It is not uncommon for an important piece of precedent to be dug up by a Judge's young law clerk. It is not even very uncommon for that same piece of precedent to be completely overlooked by the lawyers on the case. The Judge can still use it even if the lawyers didn't.
In fact, quite recently, a jury verdict was set aside by the judge on his own motion because neither side's lawyers had brought to his attention a controlling contrary authority. The judge found the decision on his own. While I have no idea how he became alerted to the case which the lawyers had overlooked, if it had occurred through his or his law clerk's having read a law blog which mentioned the case -- even one which had criticized the judge's earlier, incorrect, ruling -- that would have been a good thing, not a bad thing, because it would have meant the correct law being applied, rather than an injustice being perpetrated.
Judges are allowed to do their own legal research. Excluding blogs from that research is arbitrary and stupid. It is not uncommon for an important piece of precedent to be dug up by a Judge's young law clerk. It is not even very uncommon for that same piece of precedent to be completely overlooked by the lawyers on the case. The Judge can still use it even if the lawyers didn't.
I agree with you. I think the article is illogical in the extreme. It treats judges as though they are jurors. And it treats articles on law blogs differently than the countless articles lawyers write in all kinds of publications, both print and online.