In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occur[r]ed because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so.
Mere speculation of possible future events has no place in these preceding, merely because something may happen does not mean it has. And if something has not taken place then there is no grounds.
Well spoken, scientus.
I.e., RIAA formula for arguing that the statutory damages are appropriate:
1. Bring a lawsuit making unsupported accusations. 2. Ask for outlandish statutory damages. 3. Defend the outlandish statutory damages request by saying (a) maybe this caused us damage and (b) it's necessary to give us outlandish statutory damages to deter other people and (c) don't look at the law, judge, that will only confuse you. 4. ??????? 5. Profit!
On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards:
(Pasted from Thursday's thread:
Re:In MP3 format, so what? (Score:3, Informative)
by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal
The MP3 is the format that's being served up by the government's website........the Court making the determination (a) makes its own oral arguments available online, and (b) the format in which it chooses to do so is MP3's, which are freely shareable, and even remixable. This oral argument could wind up as the soundtrack for some anti-RIAA movies on YouTube.................
...
These are the youtube copies, courtesy of another user:
Re:Someone, please... (Score:2)
by NewYorkCountryLawyer (912032) * on Friday April 10, @12:05AM (#27527935) Homepage Journal
mariushm, Thank you for putting it up on YouTube. I've linked to your above comment, providing the YouTube segments, in my blog post.
...
This is what should happen next:
Paging all nerdy internet DJs (Score:5, Insightful)
by Weaselmancer (533834) on Thursday April 09, @06:45PM (#27525597)
Someone needs to heavily sample this and mix it into some house music, stat!
If you think the RIAA is going nuts now just wait until that shows up on P2P......
At the time of this post there were no entrants posted to the Slashdot thread of such mixes.
I have an idea of a starting point but I have to hope "quality does not matter" so someone more talented than I gets the idea and can do better.
if people are giving the choice of paying $4000 and losing everything, they have no choice
Financially, of course, you are right.
But if you are sued for something you didn't do, which is true in the majority of cases, it's not so easy to just pay extortion money. A handful of people who could have "settled" chose not to, and at great personal sacrifice fought back.
Thanks for everything you do, I especially appreciate that somebody else cares enough about these thugs to do something about it. You give the rest of the lawyers of the world a good image.
Thank you but I am not alone in thus. A number of fine lawyers all across the country have joined me in this fight, at great personal sacrifice, just to stand up for a principle.
It is also ironic is that of the 40,000 cases the RIAA brought, not a single one involved BitTorrent (to the best of my knowledge); all involved Gnutella (LimeWire, e.g.) or FastTrack (Kazaa, e.g.). I.e., using the "technology" they used to harangue those 40,000 souls, they could not detect this oral argument file.
Does it strike anyone else as odd that statutory damages are being treated as the big issue in his case?
It was actually the judge who moved the issue to the front burner by saying that she saw it as something that needed to be raised early in the case by means of a motion to dismiss complaint.
IMHO she was wrong about that; I think it cannot be determined until after a trial and then only if the RIAA recovers a statutory damages award, because there are a number of factual issues -- necessary to the question's resolution -- which simply cannot be adjudicated at this point.
Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.
do you think it is a potentially good thing that some of those big name RIAA attack dogs are now going to be prevented from working these cases due to their new DoJ jobs? Do you think these guys that deep in RIAA pockets and/or ideologically friendly to the RIAA tactics/arguments or were they just doing the job they were being paid to do?
I don't know any of the lawyers who went to the DOJ personally. I haven't personally litigated with any of them, so I really can't say anything about the way they comport themselves. I.e. I don't know if they are "attack dogs" or not; I only know that they were working in one way or another with some attack dogs. As to whether it is good or bad that they are in the DOJ I can't say. If they are honorable people their presence there shouldn't present a problem.
In many 'cutting edge' areas of law many judges cannot be 'up-to-speed' without input from reasonably respected sources of legal scholarship to draw upon.
Nor can any lawyer prepare a proper brief without him or her self engaging in scholarship. When I went to law school I was working in a law firm at the same time, and found it impressive how intimately related legal scholarship and legal work were. Any lawyer who is not also a scholar is not a top notch lawyer.
The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.
Of course there is damage, but the courts have rejected the RIAA's theory that each unauthorized download represents a lost sale, in this recent criminal copyright infringement case.
these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings
You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.
They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.
Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.
116 times their actual damages would be around $40
That's still an imaginary damage. Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost, or 2. buy it precisely because they downloaded it, liked it, and decided to buy it. No lost profit there either, quite the opposite in fact.
So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right.
So how's all the Hope and Change working out for you?
I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.
yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).
The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.
If you think law review articles are not read by the courts and considered carefully you are wrong.
In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.
Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.
Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.
The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.
The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy.
How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?
They can't. The DOJ's brief was nonsense. For that and a number of other reasons.
Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.
"Except as specifically provided in these rules or by
order of the court , no person shall take any photograph, make any recording, or make any broadcast..."
It looks pretty straightforward to me. Unless it's specifically mentioned in the rules (voice recordings by court reporters, etc.), you need a court order to record and broadcast a court proceeding.
In this case, the court heard arguments, provided a court order for the broadcast. These guys are arguing that the court had no right to make the order - and that right is given in the first sentence of the first subsection in rule 83.3 regarding Photographing, Recording, and Broadcasting.
It's a waste of the courts time, taxpayer dollars, and the client's money - both the plaintiff and the defendant.
Think about it... the judge got paid, the court reporter got paid, the bailiffs got paid to be in the room. A transcript was made, people were tasked with scheduling this thing, putting the paperwork surrounding this hearing online, and so on and so forth. All for what amounts to a first year law student project to come up with an argument to push a court into restricting it's own power.
The RIAA attorneys should be fined for bringing this action.
You've got it exactly right. There are many things the RIAA lawyers should be fined for, and this petition is one of them.
Having listened to it just now, it seems that the RIAA has the most persuasive argument. The RIAA's argument is based upon precedent, whilst the defendant's lawyer seems to make a plea based upon zeitgeist. The judge made a good point that while that seems like a good argument for changing the rule, it doesn't seem to hold much water with regards to the rule's current interpretation.
All in all, it was a very educational experience. I haven't heard oral arguments like this and I actually enjoyed listening. I for one hope that the trial ends up being broadcasted, but based upon the arguments presented and the responses from the panel, I'm going to place my chips on the RIAA. Sorry.
Slashdot Mirror
In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occur[r]ed because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so. Mere speculation of possible future events has no place in these preceding, merely because something may happen does not mean it has. And if something has not taken place then there is no grounds.
Well spoken, scientus.
I.e., RIAA formula for arguing that the statutory damages are appropriate:
1. Bring a lawsuit making unsupported accusations.
2. Ask for outlandish statutory damages.
3. Defend the outlandish statutory damages request by saying (a) maybe this caused us damage and (b) it's necessary to give us outlandish statutory damages to deter other people and (c) don't look at the law, judge, that will only confuse you.
4. ???????
5. Profit!
On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards:
(Pasted from Thursday's thread: Re:In MP3 format, so what? (Score:3, Informative) by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal The MP3 is the format that's being served up by the government's website........the Court making the determination (a) makes its own oral arguments available online, and (b) the format in which it chooses to do so is MP3's, which are freely shareable, and even remixable. This oral argument could wind up as the soundtrack for some anti-RIAA movies on YouTube.................
... These are the youtube copies, courtesy of another user:
Re:Someone, please... (Score:4, Insightful) by mariushm (1022195) on Thursday April 09, @09:19PM (#27526845) Here you go: Part 1. http://www.youtube.com/watch?v=f2RHBDwlH8c [youtube.com] Part 2. http://www.youtube.com/watch?v=FsHAF39JxNs [youtube.com] Part 3. http://www.youtube.com/watch?v=06BJu9GVU-w [youtube.com] Part 4. http://www.youtube.com/watch?v=3JcOi6htmHM [youtube.com] Part 5. http://www.youtube.com/watch?v=I9idglz0ANA [youtube.com] Part 6. http://www.youtube.com/watch?v=PWOAR6ZU0JA [youtube.com] 9 min 10 sec each, last is 1 min 10 sec
... Ray's Official acknowledgement:
Re:Someone, please... (Score:2) by NewYorkCountryLawyer (912032) * on Friday April 10, @12:05AM (#27527935) Homepage Journal mariushm, Thank you for putting it up on YouTube. I've linked to your above comment, providing the YouTube segments, in my blog post.
... This is what should happen next:
Paging all nerdy internet DJs (Score:5, Insightful) by Weaselmancer (533834) on Thursday April 09, @06:45PM (#27525597) Someone needs to heavily sample this and mix it into some house music, stat! If you think the RIAA is going nuts now just wait until that shows up on P2P. .....
At the time of this post there were no entrants posted to the Slashdot thread of such mixes. I have an idea of a starting point but I have to hope "quality does not matter" so someone more talented than I gets the idea and can do better.
Thank you, Tao! I needed an organizer.
if people are giving the choice of paying $4000 and losing everything, they have no choice
Financially, of course, you are right.
But if you are sued for something you didn't do, which is true in the majority of cases, it's not so easy to just pay extortion money. A handful of people who could have "settled" chose not to, and at great personal sacrifice fought back.
Thanks for everything you do, I especially appreciate that somebody else cares enough about these thugs to do something about it. You give the rest of the lawyers of the world a good image.
Thank you but I am not alone in thus. A number of fine lawyers all across the country have joined me in this fight, at great personal sacrifice, just to stand up for a principle.
For some reason I thought the making-available theory had been successfully challenged in open court, and was no longer being used.
Your reason for thinking that it has been successfully challenged in open court, and was rejected in every case in which the matter was fully briefed.
As to whether it is being used, the RIAA would never let a little problem like the LAW stop them.
Very misleading AC post. The only people I know who twist the facts to that extent are RIAA lawyers.
Thanks shadowbearer.
And many happy returns of the day.
now being seeded as a BitTorrent
It is also ironic is that of the 40,000 cases the RIAA brought, not a single one involved BitTorrent (to the best of my knowledge); all involved Gnutella (LimeWire, e.g.) or FastTrack (Kazaa, e.g.). I.e., using the "technology" they used to harangue those 40,000 souls, they could not detect this oral argument file.
Does it strike anyone else as odd that statutory damages are being treated as the big issue in his case?
It was actually the judge who moved the issue to the front burner by saying that she saw it as something that needed to be raised early in the case by means of a motion to dismiss complaint.
IMHO she was wrong about that; I think it cannot be determined until after a trial and then only if the RIAA recovers a statutory damages award, because there are a number of factual issues -- necessary to the question's resolution -- which simply cannot be adjudicated at this point.
Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.
I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.
do you think it is a potentially good thing that some of those big name RIAA attack dogs are now going to be prevented from working these cases due to their new DoJ jobs? Do you think these guys that deep in RIAA pockets and/or ideologically friendly to the RIAA tactics/arguments or were they just doing the job they were being paid to do?
I don't know any of the lawyers who went to the DOJ personally. I haven't personally litigated with any of them, so I really can't say anything about the way they comport themselves. I.e. I don't know if they are "attack dogs" or not; I only know that they were working in one way or another with some attack dogs. As to whether it is good or bad that they are in the DOJ I can't say. If they are honorable people their presence there shouldn't present a problem.
In many 'cutting edge' areas of law many judges cannot be 'up-to-speed' without input from reasonably respected sources of legal scholarship to draw upon.
Nor can any lawyer prepare a proper brief without him or her self engaging in scholarship. When I went to law school I was working in a law firm at the same time, and found it impressive how intimately related legal scholarship and legal work were. Any lawyer who is not also a scholar is not a top notch lawyer.
Sir, you are the first person who has ever mistaken me for a Republican. Have you been drinking?
The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.
Of course there is damage, but the courts have rejected the RIAA's theory that each unauthorized download represents a lost sale, in this recent criminal copyright infringement case.
these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings
You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.
They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.
Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.
I doubt there's a judge in the land who would rule that statutory damages of 2100 times the actual damages is constitutional.
116 times their actual damages would be around $40
That's still an imaginary damage. Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost, or 2. buy it precisely because they downloaded it, liked it, and decided to buy it. No lost profit there either, quite the opposite in fact.
That's a very good point.
So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?
I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.
yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).
The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.
If you think law review articles are not read by the courts and considered carefully you are wrong.
In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.
Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.
Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.
This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.
In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.
The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.
The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy. How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?
They can't. The DOJ's brief was nonsense. For that and a number of other reasons.
Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.
"Except as specifically provided in these rules or by order of the court , no person shall take any photograph, make any recording, or make any broadcast..."
It looks pretty straightforward to me. Unless it's specifically mentioned in the rules (voice recordings by court reporters, etc.), you need a court order to record and broadcast a court proceeding.
In this case, the court heard arguments, provided a court order for the broadcast. These guys are arguing that the court had no right to make the order - and that right is given in the first sentence of the first subsection in rule 83.3 regarding Photographing, Recording, and Broadcasting.
It's a waste of the courts time, taxpayer dollars, and the client's money - both the plaintiff and the defendant.
Think about it... the judge got paid, the court reporter got paid, the bailiffs got paid to be in the room. A transcript was made, people were tasked with scheduling this thing, putting the paperwork surrounding this hearing online, and so on and so forth. All for what amounts to a first year law student project to come up with an argument to push a court into restricting it's own power.
The RIAA attorneys should be fined for bringing this action.
You've got it exactly right. There are many things the RIAA lawyers should be fined for, and this petition is one of them.
This story provides Three times the the US RDA of Irony....
The truth is stranger than fiction.
mariushm, Thank you for putting it up on YouTube. I've linked to your above comment, providing the YouTube segments, in my blog post.
Having listened to it just now, it seems that the RIAA has the most persuasive argument. The RIAA's argument is based upon precedent, whilst the defendant's lawyer seems to make a plea based upon zeitgeist. The judge made a good point that while that seems like a good argument for changing the rule, it doesn't seem to hold much water with regards to the rule's current interpretation. All in all, it was a very educational experience. I haven't heard oral arguments like this and I actually enjoyed listening. I for one hope that the trial ends up being broadcasted, but based upon the arguments presented and the responses from the panel, I'm going to place my chips on the RIAA. Sorry.
Here's my prediction.