I find that this brief was written by MICHAEL F. HERTZ.. who appears after a google search to have been assistant attorney general in 2007.. so is this a Obama thing or a Bush thing ?.. I submit that this is more likely just SLOW government, than some new policy of the new administration.
It's not new; it's the same brief the Bush administration would have filed.
We were waiting to see if there was going to be "change". We've gotten our answer: no.
Technically, the Attorney General is under orders from Obama to investigate and potentially fire both of these lawyers if they do not have a written waiver from Peter Orszag
One of them was a law school classmate and coordinator of his transition team.
The brief will fail. No judge in his or her right mind will conclude that an award of $750 or more as against 35 cents actual damage passes constitutional muster.
Let's keep our eye on the ball here. In my blog post, I discuss the contents of the brief. This brief is a big step forward for the defendants.
The RIAA has been arguing that it is "futile" to raise a defense that the statutory damages are unconstitutionally excessive. The Government's brief directly contradicts that position, and concedes that the statutory damages are subjected to a due process test for excessiveness.
I do think that digital distribution is the future of the music industry, and that the record labels are becoming increasingly unimportant, but they are not nearly as dead as Slashdot makes them out to be.
I agree. They are not dead. They are only 'dead in the water'.
the Obama administration should have declared that millions of dollars in damages for 20-30 songs downloaded is unconstitutional and therefore illegal. Instead the Obama administration acted like the former Bush administration and (1) ignored the constitutional projections provided for the people and (2) sided with their corporate campaign contributors. This is Not change.
No, sadly, it is not. It is more of the same.
Fortunately, their brief was weak, and will be unimpressive to the Judge. Clearly, they are going to lose on this issue once the factual record is developed, if there should be any jury award for statutory damages.
But that is a long way off, and it is not even clear that the record companies will be able to recover statutory damages at all for these songs.
Yes the DOJ intervening to argue that some law of the US is not unconstitutional! I feel for you man, I really do. I'm so upset about this I nearly choked on my wheaties.
C'mon NewYorkCountryLawyer, you know DOJ will usually argue the constitutionality of existing law of the US when it is challenged in a Federal Court. Don't be so disingenuous! You're upsetting the non-lawyers. I know you have an axe to grind, and I don't disagree with you. But talk about playing to the gallery!
There was no requirement for them to step in here, or to say anything. If they wanted to intervene, they could have stepped in and said: -the Court should strive to avoid the constitutional question by refraining from deciding it unless and until statutory damages are awarded (they did say that); -statutory damages are indeed subject to a Due Process test based on excessiveness (they did say that); -the Supreme Court's last pronouncement on the subject was a 90 year old decision against a railroad corporation, but the Supreme Court in State Farm and Gore have applied a more stringent standard to punitive damage awards, and recent case law suggests the Supreme Court when it next visits the issue may apply the State Farm/Gore test, and -we express no opinion as to what would be an appropriate multiple under the facts of this particular case, since the factual record has not been developed. If and when there is an award of statutory damages, which is challenged at that time on due process grounds, we respectfully request the right to be heard at that time on that issue in the event the Government believes the award does pass constitutional muster.
It seems poor strategy to ignore the FSF's brief and hope it goes away...
Not if you can't think of anything to say in response to it. In such a situation maybe it's good strategy to ignore the authorities and pray that the judge does too. I don't know, it's not my style. I like to deal with problems head on.
Thank you for the clarification. Trying to understand legal wrangling without the education for it is rough - as a layman, it's hard to know what's fact, opinion, or spin when lawyers start making words, and I appreciate your accessibility in these Phonographic Impression Distributors v. The People discussions.
My pleasure. It is very hard indeed. The first year of law school is the toughest, because of the need to readjust to a different language.
Of course I believe the larger issue in this story is the administration's involvement in general, but that's one on which I'm completely qualified to have an opinion (it sucks like a sucking sucker).
I agree that it's most unfortunate, but I don't agree that it's the "larger issue". The "larger issue" is whether the RIAA's statutory damages theory is unconstitutionally excessive in violation of Due Process, and I think it certainly is. The Government's very weak brief demonstrates that.
The RIAA produces evidence of the downloading of one copy and then asks for $150,000 in statutory damages. If they want the judge to take their actual damages due to the downloading of 100,000 copies into consideration they must produce evidence of the downloading of 100,000 copies. They don't.
Evidence? You want them to come up with evidence, too? It's not enough that they make wild false allegations?
Picky picky.
What will they think of next? Next they'll probably be wanting the RIAA's lawyers to come up with supportable legal arguments, too. What is the world coming to?
this is not a change for the worse because it's not a change at all
Correct. This is precisely the same thing the Bush Administration would have filed. Which saddens me deeply, since we are all painfully aware of what the Bush Administration accomplished. The only redeeming virtue of this brief is that it is illogical and weak, portending that the RIAA will lose on this issue when push comes to shove.
The award of statutory damages means that your actions have consequences even when their cost can't easily be quantified.
That is too important a principle for the government to surrender it lightly.
No one disputes that principle. The only issue is : "how much is too much?"
Now, I'm not a lawyer, and I confess I haven't dug through the briefs. Leaving aside the question of why the White House is involved in this at all, this line confuses me.
First, if the WH's brief concedes that statutory damages are subject to excessive damage review, I don't know why they would address the FSF's argument further in that regard.
Because the authorities cited by the FSF referred to the "State Farm/Gore" test; the Government took the position that the "Williams" test, and not the "State Farm/Gore" test is applicable.
Secondly, if the administration cited SCOTUS and Circuit Court rulings, why would they need to address law review articles and District Court rulings? I'm under the impression that the higher courts trump the lower ones. I'd suggest, again with little knowledge of the matter, that the FSF failed by using weak citations. In an argument on Constitutional grounds, I have trouble seeing where the lower court rulings and journal articles should have more weight than a higher court ruling on a general case, even if the subject matter is more directly related.
Because their authority was a wildly distinguishable case that is 90 years old, and because a great deal of recent jurisprudence has emanated from the US Supreme Court on how much is too much in the punitive damages sphere, and a number of recent authorities have stated that this US Supreme Court jurisprudence is applicable to statutory damages.
Any insight into this from someone who's read the briefs and, ideally, studied some law would be appreciated.
Returning to the matter of the White House's involvement at all... guk. This seems to me to be, simply, beneath the White House. There's no reason I can see why they should feel they have an official interest in the matter. This should frankly be true when it comes to any Constitutional law decision of the courts; their job is to obey the big C as the courts interpret it, not to attempt to influence this. I've long held that the executive branch should show no interest in legal - especially Constitutional - interpretation beyond enforcing, obeying, and occasionally clarifying it.
The motion filed by the DOJ claims that neither side's counsel opposed the motion.
Probably a grudging acceptance that is mandated by federal law, but some insight into how these motions work would be nice.
Resistance would have been futile. The Department of Justice has a legal right to intervene and file a brief arguing the constitutionality of a federal statute. Fortunately, the brief was weak; if this is the best argument the RIAA and its friends can come up with, they lose.
How exactly is chiming in on the RIAA lawsuit worse than anything that bush did in his eight miserable years in office?
It's not worse; it's identical.
Doing the exact same thing as your predecessor is "not change". And fighting for big corporations' rights to squeeze people for statutory damage awards that are 2100 to 425,000 times the size of the actual damages, is not helping to rebuild the middle class.
First, the RIAA is basically irrelevant in this day and age. There is no need to make sure that the record labels continue. Record labels do not add anything to culture, or to the economy, artists do. The record labels do more harm than good to the artists. Back before the internet, it was important to be signed on to a record label for a few reasons.
A) Recording the song, today though, with a small investment anyone can record songs that sound about as good as professionally done songs.
B) Giving the song air time. Today, radio is a dead medium. Sure, it reaches some people, but internet radio, music video games (Guitar Hero, Rock Band, Tap Tap, etc), online promotions, YouTube, etc will reach a larger number of people, and all those do not require a record label.
C) Giving the album store space. Today, most music sales are digital, its not too hard to put a song on iTunes, Amazon MP3, etc. And while a record label will certainly help getting you into a physical store, that is not the only way.
Today, all the functions of a record label can be done by the band and a few others. There is no need to make sure the record companies survive, only the artists. Because the record companies do not help the artist, why keep them?
Exactly. Which is why they have embarked on this vicious litigation campaign. It's a pathetic way for the failed executives of the 'Big 4' record companies to deflect attention from their failure, and it's an even more pathetic way to try to gain control over the internet.
Re:Not the most pressing issue, but bad precident
on
Obama DOJ Sides With RIAA
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· Score: 2, Informative
The RIAA intervention by the DOJ would not usually get my panties in a twist, but I think it is taking us in the wrong direction. It was the greed, arrogance, and unreasonable actions by wall street executives that got us into the current financial mess. The RIAA is no different and in my humble opinion, Obama's support for their arrogance and bullying is sending a clear message that he is duplicitous.
Either you are against this of behaviour or you are for it. You can't be both.
I agree that the position taken by the brief is inconsistent with the thrust of Mr. Obama's campaign promises.
There was no reason for the administration to intervene at all in this case. There was no legal requirement for them to take a position in the case.
I agree with you wholeheartedly. If they were going to intervene, they should have said "It is correct that the statutory damages provision of the Copyright Act is subject to a due process test. We take no position on whether the test enunciated in the 1919 Williams decision, or the more recent State Farm/Gore test, should determine the statute's constitutionality. We submit that the Court should defer ruling on the defense at this early stage of the case, and should await the outcome of the trial, in order to avoid any unnecessary determination of any constitutional question, and to allow any such determination to be made upon a full record, rather than in the abstract."
The RIAA doesn't depend on being liked by people. It's purpose is to give the various record companies a bit of anonymity and plausible deniability....The RIAA *exists* to do things that the record companies wouldn't want associated with their names.
Interesting theory. How's the plan working for them? Is there a soul out there who doesn't know that it's the 'Big 4' record companies (EMI, Universal, SONY, Warner)?
Ray, do you think that the redefinition of copyright law may be the real goal of the RIAA, MPAA and other organizations of their ilk? You and others have occasionally said that the ill-will that is being created cannot possibly be balanced by the monetary payoff. If there is no monetary payoff, there must be an intangible payoff, and the erosion and elimination of user's rights could be an immediate goal. Thinking a little further, taking control of peoples' systems and turning it over to the cartels could have an enormous, if not unlimited, long-term payoff. The thought of root-kitting creeps like these being in control of everything is scary stuff. Glad I've been supporting the FSF.
There's no doubt in my mind that that rewriting the copyright law is one of their objectives, as part of their overall strategy of defeating the internet until they can subjogate it to their own monopolistic practices. And it will be interesting to see what the Obama administration -- now packed with RIAA lawyers at the highest level -- will have to say in this case. Are they going to take the legal position, as they did under George Bush -- that smacking teenagers with 'statutory damages' of $750 to $150,000 per mp3 file, payable to the record cartel, is just hunky dory?
While I do agree he is helping - a bit of translation for those of us who aren't native English speaking (nor understand US legal system) would very much be appreciated.
I'm sorry but my priority has to be get the unvarnished facts out there. If I start watering stuff down, I'm afraid I'll start describing things incorrectly. And to me it seems that the most important role I can play is to report the news, and get the litigation documents online.
There is some true irony here as one of the Plaintiffs in this case who is arguing that such damages shouldn't be limited to a single-digit ratio of actual damages, argued (and won) in an Appeals Court case when they were the Defendant that such damages should be so limited.
Yes, when UMG Recordings was a defendant it was crying a very different tune. All of a sudden the Constitution counted, and 'deterrence' wasn't so important.
Well they don't actually supply the experts. They've administered a separate fund, the Expert Witness Defense Fund, the purpose of which is to provide funds to the defendants with which to hire their own technical experts and/or consultants. The fund has provided financial support to the UMG v. Lindor case, and to the Capitol v. Thomas case.
Slashdot Mirror
I find that this brief was written by MICHAEL F. HERTZ .. who appears after a google search to have been assistant attorney general in 2007 .. so is this a Obama thing or a Bush thing ?.. I submit that this is more likely just SLOW government, than some new policy of the new administration.
It's not new; it's the same brief the Bush administration would have filed.
We were waiting to see if there was going to be "change". We've gotten our answer: no.
Technically, the Attorney General is under orders from Obama to investigate and potentially fire both of these lawyers if they do not have a written waiver from Peter Orszag
One of them was a law school classmate and coordinator of his transition team.
George W Bush will be remembered as a great president in the future
Yes I'm sure Osama Bin Laden would agree with you.
Obama does not make it harder for industry insiders to influence government by having them occupy various influential positions within the government.
You mean like putting RIAA lawyers into the second and third highest positions in the Justice Department?
The brief will fail. No judge in his or her right mind will conclude that an award of $750 or more as against 35 cents actual damage passes constitutional muster.
Let's keep our eye on the ball here. In my blog post, I discuss the contents of the brief. This brief is a big step forward for the defendants.
The RIAA has been arguing that it is "futile" to raise a defense that the statutory damages are unconstitutionally excessive. The Government's brief directly contradicts that position, and concedes that the statutory damages are subjected to a due process test for excessiveness.
I do think that digital distribution is the future of the music industry, and that the record labels are becoming increasingly unimportant, but they are not nearly as dead as Slashdot makes them out to be.
I agree. They are not dead. They are only 'dead in the water'.
the Obama administration should have declared that millions of dollars in damages for 20-30 songs downloaded is unconstitutional and therefore illegal. Instead the Obama administration acted like the former Bush administration and (1) ignored the constitutional projections provided for the people and (2) sided with their corporate campaign contributors. This is Not change.
No, sadly, it is not. It is more of the same.
Fortunately, their brief was weak, and will be unimpressive to the Judge. Clearly, they are going to lose on this issue once the factual record is developed, if there should be any jury award for statutory damages.
But that is a long way off, and it is not even clear that the record companies will be able to recover statutory damages at all for these songs.
Yes the DOJ intervening to argue that some law of the US is not unconstitutional! I feel for you man, I really do. I'm so upset about this I nearly choked on my wheaties. C'mon NewYorkCountryLawyer, you know DOJ will usually argue the constitutionality of existing law of the US when it is challenged in a Federal Court. Don't be so disingenuous! You're upsetting the non-lawyers. I know you have an axe to grind, and I don't disagree with you. But talk about playing to the gallery!
There was no requirement for them to step in here, or to say anything. If they wanted to intervene, they could have stepped in and said:
-the Court should strive to avoid the constitutional question by refraining from deciding it unless and until statutory damages are awarded (they did say that);
-statutory damages are indeed subject to a Due Process test based on excessiveness (they did say that);
-the Supreme Court's last pronouncement on the subject was a 90 year old decision against a railroad corporation, but the Supreme Court in State Farm and Gore have applied a more stringent standard to punitive damage awards, and recent case law suggests the Supreme Court when it next visits the issue may apply the State Farm/Gore test, and
-we express no opinion as to what would be an appropriate multiple under the facts of this particular case, since the factual record has not been developed.
If and when there is an award of statutory damages, which is challenged at that time on due process grounds, we respectfully request the right to be heard at that time on that issue in the event the Government believes the award does pass constitutional muster.
It seems poor strategy to ignore the FSF's brief and hope it goes away...
Not if you can't think of anything to say in response to it. In such a situation maybe it's good strategy to ignore the authorities and pray that the judge does too. I don't know, it's not my style. I like to deal with problems head on.
Thank you for the clarification. Trying to understand legal wrangling without the education for it is rough - as a layman, it's hard to know what's fact, opinion, or spin when lawyers start making words, and I appreciate your accessibility in these Phonographic Impression Distributors v. The People discussions.
My pleasure. It is very hard indeed. The first year of law school is the toughest, because of the need to readjust to a different language.
Of course I believe the larger issue in this story is the administration's involvement in general, but that's one on which I'm completely qualified to have an opinion (it sucks like a sucking sucker).
I agree that it's most unfortunate, but I don't agree that it's the "larger issue". The "larger issue" is whether the RIAA's statutory damages theory is unconstitutionally excessive in violation of Due Process, and I think it certainly is. The Government's very weak brief demonstrates that.
The RIAA produces evidence of the downloading of one copy and then asks for $150,000 in statutory damages. If they want the judge to take their actual damages due to the downloading of 100,000 copies into consideration they must produce evidence of the downloading of 100,000 copies. They don't.
Evidence? You want them to come up with evidence, too? It's not enough that they make wild false allegations?
Picky picky.
What will they think of next? Next they'll probably be wanting the RIAA's lawyers to come up with supportable legal arguments, too. What is the world coming to?
this is not a change for the worse because it's not a change at all
Correct. This is precisely the same thing the Bush Administration would have filed. Which saddens me deeply, since we are all painfully aware of what the Bush Administration accomplished. The only redeeming virtue of this brief is that it is illogical and weak, portending that the RIAA will lose on this issue when push comes to shove.
The award of statutory damages means that your actions have consequences even when their cost can't easily be quantified. That is too important a principle for the government to surrender it lightly.
No one disputes that principle. The only issue is : "how much is too much?"
Now, I'm not a lawyer, and I confess I haven't dug through the briefs. Leaving aside the question of why the White House is involved in this at all, this line confuses me. First, if the WH's brief concedes that statutory damages are subject to excessive damage review, I don't know why they would address the FSF's argument further in that regard.
Because the authorities cited by the FSF referred to the "State Farm/Gore" test; the Government took the position that the "Williams" test, and not the "State Farm/Gore" test is applicable.
Secondly, if the administration cited SCOTUS and Circuit Court rulings, why would they need to address law review articles and District Court rulings? I'm under the impression that the higher courts trump the lower ones. I'd suggest, again with little knowledge of the matter, that the FSF failed by using weak citations. In an argument on Constitutional grounds, I have trouble seeing where the lower court rulings and journal articles should have more weight than a higher court ruling on a general case, even if the subject matter is more directly related.
Because their authority was a wildly distinguishable case that is 90 years old, and because a great deal of recent jurisprudence has emanated from the US Supreme Court on how much is too much in the punitive damages sphere, and a number of recent authorities have stated that this US Supreme Court jurisprudence is applicable to statutory damages.
Any insight into this from someone who's read the briefs and, ideally, studied some law would be appreciated. Returning to the matter of the White House's involvement at all... guk. This seems to me to be, simply, beneath the White House. There's no reason I can see why they should feel they have an official interest in the matter. This should frankly be true when it comes to any Constitutional law decision of the courts; their job is to obey the big C as the courts interpret it, not to attempt to influence this. I've long held that the executive branch should show no interest in legal - especially Constitutional - interpretation beyond enforcing, obeying, and occasionally clarifying it.
I agree; I think this was a disgraceful display.
The motion filed by the DOJ claims that neither side's counsel opposed the motion. Probably a grudging acceptance that is mandated by federal law, but some insight into how these motions work would be nice.
Resistance would have been futile. The Department of Justice has a legal right to intervene and file a brief arguing the constitutionality of a federal statute. Fortunately, the brief was weak; if this is the best argument the RIAA and its friends can come up with, they lose.
How exactly is chiming in on the RIAA lawsuit worse than anything that bush did in his eight miserable years in office?
It's not worse; it's identical.
Doing the exact same thing as your predecessor is "not change". And fighting for big corporations' rights to squeeze people for statutory damage awards that are 2100 to 425,000 times the size of the actual damages, is not helping to rebuild the middle class.
First, the RIAA is basically irrelevant in this day and age. There is no need to make sure that the record labels continue. Record labels do not add anything to culture, or to the economy, artists do. The record labels do more harm than good to the artists. Back before the internet, it was important to be signed on to a record label for a few reasons. A) Recording the song, today though, with a small investment anyone can record songs that sound about as good as professionally done songs. B) Giving the song air time. Today, radio is a dead medium. Sure, it reaches some people, but internet radio, music video games (Guitar Hero, Rock Band, Tap Tap, etc), online promotions, YouTube, etc will reach a larger number of people, and all those do not require a record label. C) Giving the album store space. Today, most music sales are digital, its not too hard to put a song on iTunes, Amazon MP3, etc. And while a record label will certainly help getting you into a physical store, that is not the only way. Today, all the functions of a record label can be done by the band and a few others. There is no need to make sure the record companies survive, only the artists. Because the record companies do not help the artist, why keep them?
Exactly. Which is why they have embarked on this vicious litigation campaign. It's a pathetic way for the failed executives of the 'Big 4' record companies to deflect attention from their failure, and it's an even more pathetic way to try to gain control over the internet.
The RIAA intervention by the DOJ would not usually get my panties in a twist, but I think it is taking us in the wrong direction. It was the greed, arrogance, and unreasonable actions by wall street executives that got us into the current financial mess. The RIAA is no different and in my humble opinion, Obama's support for their arrogance and bullying is sending a clear message that he is duplicitous. Either you are against this of behaviour or you are for it. You can't be both.
I agree that the position taken by the brief is inconsistent with the thrust of Mr. Obama's campaign promises.
There was no reason for the administration to intervene at all in this case. There was no legal requirement for them to take a position in the case.
I agree with you wholeheartedly. If they were going to intervene, they should have said "It is correct that the statutory damages provision of the Copyright Act is subject to a due process test. We take no position on whether the test enunciated in the 1919 Williams decision, or the more recent State Farm/Gore test, should determine the statute's constitutionality. We submit that the Court should defer ruling on the defense at this early stage of the case, and should await the outcome of the trial, in order to avoid any unnecessary determination of any constitutional question, and to allow any such determination to be made upon a full record, rather than in the abstract."
The RIAA doesn't depend on being liked by people. It's purpose is to give the various record companies a bit of anonymity and plausible deniability....The RIAA *exists* to do things that the record companies wouldn't want associated with their names.
Interesting theory. How's the plan working for them? Is there a soul out there who doesn't know that it's the 'Big 4' record companies (EMI, Universal, SONY, Warner)?
"The EFF or some other organization SHOULD be filing an amicus brief. But not me... I'm just some guy." Ray Beckerman (on Groklaw)
Glad to see you changed your mind Ray.
Thanks, but the brief was filed on behalf of an organization... the Free Software Foundation. I was just one of the lawyers.
Ray, do you think that the redefinition of copyright law may be the real goal of the RIAA, MPAA and other organizations of their ilk? You and others have occasionally said that the ill-will that is being created cannot possibly be balanced by the monetary payoff. If there is no monetary payoff, there must be an intangible payoff, and the erosion and elimination of user's rights could be an immediate goal. Thinking a little further, taking control of peoples' systems and turning it over to the cartels could have an enormous, if not unlimited, long-term payoff. The thought of root-kitting creeps like these being in control of everything is scary stuff. Glad I've been supporting the FSF.
There's no doubt in my mind that that rewriting the copyright law is one of their objectives, as part of their overall strategy of defeating the internet until they can subjogate it to their own monopolistic practices. And it will be interesting to see what the Obama administration -- now packed with RIAA lawyers at the highest level -- will have to say in this case. Are they going to take the legal position, as they did under George Bush -- that smacking teenagers with 'statutory damages' of $750 to $150,000 per mp3 file, payable to the record cartel, is just hunky dory?
While I do agree he is helping - a bit of translation for those of us who aren't native English speaking (nor understand US legal system) would very much be appreciated.
I'm sorry but my priority has to be get the unvarnished facts out there. If I start watering stuff down, I'm afraid I'll start describing things incorrectly. And to me it seems that the most important role I can play is to report the news, and get the litigation documents online.
There is some true irony here as one of the Plaintiffs in this case who is arguing that such damages shouldn't be limited to a single-digit ratio of actual damages, argued (and won) in an Appeals Court case when they were the Defendant that such damages should be so limited.
Yes, when UMG Recordings was a defendant it was crying a very different tune. All of a sudden the Constitution counted, and 'deterrence' wasn't so important.
The FSF is working with The Recording Industry vs. the People to provide an Expert Witnesses Fund. Basically, they're providing computer experts to combat the misinformation spouted by the RIAA concerning technology.
http://recordingindustryvspeople.blogspot.com/2007/11/expert-witness-defense-fund-for-riaa.html
https://www.fsf.org/associate/riaa
Well they don't actually supply the experts. They've administered a separate fund, the Expert Witness Defense Fund, the purpose of which is to provide funds to the defendants with which to hire their own technical experts and/or consultants. The fund has provided financial support to the UMG v. Lindor case, and to the Capitol v. Thomas case.