This is utterly ridiculous. It's not like work on an open source project is comparable to giving away money, or hand-built widgets. Nobody is going to say "gee, I would normally contribute this code to that open source project, but I'm unemployed, so I'll sell it to buy groceries instead."
I know you're right, but could you explain the economic reality in a bit more detail, for the uninitiated like myself who are as knowledgeable? Thanks.
Im surprised that blockshopper settled out of court here.
I had a similar experience, with regard to unpaid domains from a place I was doing contract work for.
When the bills went unpaid, I posted a link to the county courthouse that listed all the current and pending cases said company had against it.
Almost a year later, I got what is best known as a "Cease and Desist" letter in the mail from an attorney. The letter claimed all sorts of things, that I was knowingly committing libel, along with trademark and copyright violations as well. The threats included if I did not comply were restraining orders, fines, and CRIMINAL charges being filed against me.
So what did I do? I never responded to the letter, and I posted the letter on my website, for all to read. So now, something that had about 1-2 hits a month, went up to being seen by 10,000+ people. And the lawyer who attached himself to this attempt, is forever associated with it.
You can read the incompetent attempt at a Cease and Desist Letter [demystify.info] here. The company who felt this was an ethical approach was Caton Commercial [willcounty...tcourt.com]
And now, one year later, I have not heard a single response to that letter. Although, in all honesty I wish that I could have gone into a court room, and heard the lawyer who wrote that letter try to explain his case to a judge that the county was publishing libelous information by posting the schedule of its own cases online publicly.
You did what people need to do in this society... fight back against the bullies. If you don't, the freedoms we have in our society will be gone in the blink of an eye.
Lawyers are paid for their knowledge, judgement and advice. I'm not in the market at the moment, but as an occasional purchaser of legal services, the fact that Jones Day would pursue this claim in this way indicates a lack of sound judgement. If I were looking for a lawyer, I would be thinking - "If they are as clueless about the real world as the reporting on this case suggests, in acting for themselves, then how could they be trusted to give sensible advice to others?" Jones Day have thousands of lawyers, and of course this case is one of thousands that I expect that they are currently involved in, but how could their review team have let this carry on to its conclusion? Incorrect risk analysis on their part? No risk analysis? Could reporting on this be incorrect?
I understand that nobody enjoys information that they consider to be private to be put into the public domain, and that part of the problem is that the internet removes the half-way house that publication on paper provided - semi-public by way of obscurity - that they lacked tools to redact the information, but I'm not sure that this is a good reason for a trademark claim. Perhaps a spokesperson from Jones Day would like to give some background on their decision making and the way that they pursued their claim to provide balance to the commentary.
Good point. I would never recommend using a firm like that.
Yep, but the judge in this case is the even bigger idiot.
Thing is, judges always say things like that -- to both sides. It doesn't tell you how they're ultimately going to rule.
Unlike on television, where every case goes to trial in 3 days, the reality of litigation is that the Courts do not have the resources for every case to go to trial. The Courts would need to be a hundred times their present size to accommodate that many trials.
In today's world of modern litigation, one of the functions of a judge is to get rid of the case, which involves arm twisting of BOTH sides. The judge tells each side why they're stupid not to settle.
So if the judge said that, you can't draw any conclusions as to how the case would ultimately wound up.
Freedom is never easy. People have to fight for it. It's as simple as that. The idiots who brought this lawsuit would have lost had the defendant stayed in the game.
It shows (apparently) that video games cause some people to act violently. That's cause enough to consider a ban
Not necessarily. What if playing violent video games as a youth serves as an outlet for some, so that their having access to the games causes them to be less, rather than more, violent, in their real lives?
NYCL, I thought you were branching out to other legal issues, but then I saw your other comment about the RIAA lawyers being lawyers for this case also.
Well there are other things I'm interested in. Just thought it was an interesting 'aside' that others without my 'RIAA Radar' might not have picked up on the fact that the very same firm that so passionately fought for 'freedom' for its clients would deny freedom to others.
Well, from what I've read, it's not judgment per se, but the complete processing of the possible consequences involved in a decision that doesn't fully develop until early adulthood.
Rare is the adult that ever becomes capable of "complete processing of the possible consequences involved in a decision".
Did anyone notice that the lawyers who successfully argued for "freedom of speech" here are the same ones who are fighting so hard to prevent the televising of the SONY v. Tenenbaum RIAA case?
The human brain does not develop its judgement part until between 18-22 years old, and the judgement of kids younger than 18 is notoriously horrible.
No offense, but I don't agree with a single thing you have said. The human brain starts developing its "judgment part" when it's in the womb. Many children's "judgment" is a lot better than that of most adults.
During the first six years of my legal career I studied under the late Louis Nizer, who was probably the greatest trial lawyer of the second half of the 20th Century. He said that the best way to know whether your position in a case was right or wrong was to present the facts of the case to a 15-year old; if the 15-year old votes for the other side, then settle the case, quick.
I don't think the GP was arguing that the lifting of the ban is bad, it's just a curious double standard. I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.
In my view the bans on 'obscenity' are equally idiotic, just political pandering.
This was a really good ruling. Leave censorship to the parents. There has been yet to prove a direct corollation between violent behvior and video games. Some studies have shown that operrant conditioning is happening where video game players may overcome the natural inhibition to kill. However, this theory fails to explain why most people that play violent video games do not go out and act like that in the real world. Behavioral science, while fascinating, is inexact at best. Legislating people's actions based on an inexact science is never a very good idea.
When I was a kid my favorite game was war and my favorite toys were toy guns. In real life I've never in my life ever used a weapon, not even a stick, against another living creature, or even wanted to.
As far as I'm concerned coming up with a law like is just a bunch of phony politicking, pandering to the dumber voters amongst us.
An important precedent has been set. The uproar created by the community, including some people cancelling their Facebook memberships, caused the Terms of Service to be reverted. We must remember this. It should be a rallying cry: "Remember Facebook".
isn't the government obligated to defend any laws that are being called unconstitutional?
No.
Or if they have discretion in the matter, what discretion are they allowed?
Virtually unlimited discretion. They can refrain if they think the statute may indeed be unconstitutional, or if they just don't like it, or if they think they shouldn't intervene in a private dispute, or if they just think they have better things to do with their limited resources than gang up with the RIAA against some college student.
To NYCL:
Thank you for putting a relevant ad on your page (the one to the independent download shop). That was the first internet ad I've intentionally clicked on in years.
We should be so lucky that all sites would do that.
Funny you should say that because just a couple of days ago I decided to take down the Google AdSense ads, which are supposed be directly relevant to my site's content but just aren't, and to start concentrating on ads that are consistent with the subject matter of the blog. Also, I came to the conclusion that the ads for independent music downloads are the most important thing I can feature, since the more independent music that is bought, the sooner the RIAA will go down. Meanwhile, I have the classified ads, which are hosted on a different page, if they just want to help me out by buying stuff through my links.
the Justice Department has to support the laws as written before the courts
Yes but every member of the Justice Department, and indeed every attorney, takes an oath to defend the Constitution of the United States. Not a particular provision, or interpretation of a provision, of the Copyright Act. I.e., while we are bound to protect and defend "the law", the chief "law" we are bound to protect and defend is the Constitution of the United States. The United States Supreme Court has held that punitive damages which exceed by more than nine times the actual damages are presumptively unconstitutional. The United States Court of Appeals for the Second Circuit, the Northern District of California, and the Eastern District of New York have held that statutory damages may well be subject to the same principle. No cases have held to the contrary. And two excellent law review articles have argued forcefully that the statutory damages scheme of the Copyright Act, providing for MINIMUM damages of $750 per infringement, is in fact unconstitutional as applied to the micropayment p2p file sharing cases -- i.e. if each 99-cent song file creates a $750 to $150,000 liability.
So the DOJ should stay far away from defending this nonsense. They have much more important things to do than to ensure that college students be exposed to damages which even the courts recognize are ludicrous. See, e.g., the last 3 or 4 pages of Judge Davis's decision in Capitol v. Thomas.
The DOJ is just asking for some more time in which to decide whether intervention is appropriate. That is a good thing, not a bad thing. The more time they have to make up their mind, the more likely it is they will make the right decision and do the right thing, which in this case would be to do nothing and take no position and leave it up to the Judge to sort out whether the RIAA's theory is unconstitutional.
Slashdot Mirror
People need something to live off
This is utterly ridiculous. It's not like work on an open source project is comparable to giving away money, or hand-built widgets. Nobody is going to say "gee, I would normally contribute this code to that open source project, but I'm unemployed, so I'll sell it to buy groceries instead."
I know you're right, but could you explain the economic reality in a bit more detail, for the uninitiated like myself who are as knowledgeable? Thanks.
I've put a copy of the decision (PDF) online.
One unfortunate part of our legal system is that a behemoth can currently smother an opponent with money whether they're right or not.
That is quite true. The American Bar Association's Judges Journal -- the association's quarterly publication for the judges section -- asked me to write an article last year about how, because of the economic imbalance, the defendants did not have "equal access to justice" in the RIAA cases, entitled "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations".
Lawyers generally don't strive on the reputation of being likable.
Now you tell me.
Im surprised that blockshopper settled out of court here. I had a similar experience, with regard to unpaid domains from a place I was doing contract work for. When the bills went unpaid, I posted a link to the county courthouse that listed all the current and pending cases said company had against it. Almost a year later, I got what is best known as a "Cease and Desist" letter in the mail from an attorney. The letter claimed all sorts of things, that I was knowingly committing libel, along with trademark and copyright violations as well. The threats included if I did not comply were restraining orders, fines, and CRIMINAL charges being filed against me. So what did I do? I never responded to the letter, and I posted the letter on my website, for all to read. So now, something that had about 1-2 hits a month, went up to being seen by 10,000+ people. And the lawyer who attached himself to this attempt, is forever associated with it. You can read the incompetent attempt at a Cease and Desist Letter [demystify.info] here. The company who felt this was an ethical approach was Caton Commercial [willcounty...tcourt.com] And now, one year later, I have not heard a single response to that letter. Although, in all honesty I wish that I could have gone into a court room, and heard the lawyer who wrote that letter try to explain his case to a judge that the county was publishing libelous information by posting the schedule of its own cases online publicly.
You did what people need to do in this society... fight back against the bullies. If you don't, the freedoms we have in our society will be gone in the blink of an eye.
Lawyers are paid for their knowledge, judgement and advice. I'm not in the market at the moment, but as an occasional purchaser of legal services, the fact that Jones Day would pursue this claim in this way indicates a lack of sound judgement. If I were looking for a lawyer, I would be thinking - "If they are as clueless about the real world as the reporting on this case suggests, in acting for themselves, then how could they be trusted to give sensible advice to others?" Jones Day have thousands of lawyers, and of course this case is one of thousands that I expect that they are currently involved in, but how could their review team have let this carry on to its conclusion? Incorrect risk analysis on their part? No risk analysis? Could reporting on this be incorrect? I understand that nobody enjoys information that they consider to be private to be put into the public domain, and that part of the problem is that the internet removes the half-way house that publication on paper provided - semi-public by way of obscurity - that they lacked tools to redact the information, but I'm not sure that this is a good reason for a trademark claim. Perhaps a spokesperson from Jones Day would like to give some background on their decision making and the way that they pursued their claim to provide balance to the commentary.
Good point. I would never recommend using a firm like that.
Yep, but the judge in this case is the even bigger idiot.
Thing is, judges always say things like that -- to both sides. It doesn't tell you how they're ultimately going to rule.
Unlike on television, where every case goes to trial in 3 days, the reality of litigation is that the Courts do not have the resources for every case to go to trial. The Courts would need to be a hundred times their present size to accommodate that many trials.
In today's world of modern litigation, one of the functions of a judge is to get rid of the case, which involves arm twisting of BOTH sides. The judge tells each side why they're stupid not to settle.
So if the judge said that, you can't draw any conclusions as to how the case would ultimately wound up.
Freedom is never easy. People have to fight for it. It's as simple as that. The idiots who brought this lawsuit would have lost had the defendant stayed in the game.
It shows (apparently) that video games cause some people to act violently. That's cause enough to consider a ban
Not necessarily. What if playing violent video games as a youth serves as an outlet for some, so that their having access to the games causes them to be less, rather than more, violent, in their real lives?
NYCL, I thought you were branching out to other legal issues, but then I saw your other comment about the RIAA lawyers being lawyers for this case also.
Well there are other things I'm interested in. Just thought it was an interesting 'aside' that others without my 'RIAA Radar' might not have picked up on the fact that the very same firm that so passionately fought for 'freedom' for its clients would deny freedom to others.
No offense to your profession, Ray, but......
:)
Well, from what I've read, it's not judgment per se, but the complete processing of the possible consequences involved in a decision that doesn't fully develop until early adulthood.
Rare is the adult that ever becomes capable of "complete processing of the possible consequences involved in a decision".
Did anyone notice that the lawyers who successfully argued for "freedom of speech" here are the same ones who are fighting so hard to prevent the televising of the SONY v. Tenenbaum RIAA case?
I think when the Founding Fathers wrote the Constitution, they never meant it to mean that a black guy could be president.
I don't laugh out loud much, but you got a big laugh out of me on that one; I hope you get modded to +5 funny. Truer words were never spoken.
The human brain does not develop its judgement part until between 18-22 years old, and the judgement of kids younger than 18 is notoriously horrible.
No offense, but I don't agree with a single thing you have said. The human brain starts developing its "judgment part" when it's in the womb. Many children's "judgment" is a lot better than that of most adults.
During the first six years of my legal career I studied under the late Louis Nizer, who was probably the greatest trial lawyer of the second half of the 20th Century. He said that the best way to know whether your position in a case was right or wrong was to present the facts of the case to a 15-year old; if the 15-year old votes for the other side, then settle the case, quick.
What it boils down to is what is considered obscene...
What I want to know is where does one group of people get the right to legislate for the rest of us what is 'obscene'.
I don't think the GP was arguing that the lifting of the ban is bad, it's just a curious double standard. I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.
In my view the bans on 'obscenity' are equally idiotic, just political pandering.
This was a really good ruling. Leave censorship to the parents. There has been yet to prove a direct corollation between violent behvior and video games. Some studies have shown that operrant conditioning is happening where video game players may overcome the natural inhibition to kill. However, this theory fails to explain why most people that play violent video games do not go out and act like that in the real world. Behavioral science, while fascinating, is inexact at best. Legislating people's actions based on an inexact science is never a very good idea.
When I was a kid my favorite game was war and my favorite toys were toy guns. In real life I've never in my life ever used a weapon, not even a stick, against another living creature, or even wanted to.
As far as I'm concerned coming up with a law like is just a bunch of phony politicking, pandering to the dumber voters amongst us.
An important precedent has been set. The uproar created by the community, including some people cancelling their Facebook memberships, caused the Terms of Service to be reverted. We must remember this. It should be a rallying cry: "Remember Facebook".
Well I guess you know better than any judge that has addressed the issue so far.
isn't the government obligated to defend any laws that are being called unconstitutional?
No.
Or if they have discretion in the matter, what discretion are they allowed?
Virtually unlimited discretion. They can refrain if they think the statute may indeed be unconstitutional, or if they just don't like it, or if they think they shouldn't intervene in a private dispute, or if they just think they have better things to do with their limited resources than gang up with the RIAA against some college student.
To NYCL: Thank you for putting a relevant ad on your page (the one to the independent download shop). That was the first internet ad I've intentionally clicked on in years. We should be so lucky that all sites would do that.
Funny you should say that because just a couple of days ago I decided to take down the Google AdSense ads, which are supposed be directly relevant to my site's content but just aren't, and to start concentrating on ads that are consistent with the subject matter of the blog. Also, I came to the conclusion that the ads for independent music downloads are the most important thing I can feature, since the more independent music that is bought, the sooner the RIAA will go down. Meanwhile, I have the classified ads, which are hosted on a different page, if they just want to help me out by buying stuff through my links.
Thank you very much for the input.
I was just saying that the DOJ is NOT obligated to put in a brief, as the GP had suggested.
the Justice Department has to support the laws as written before the courts
Yes but every member of the Justice Department, and indeed every attorney, takes an oath to defend the Constitution of the United States. Not a particular provision, or interpretation of a provision, of the Copyright Act. I.e., while we are bound to protect and defend "the law", the chief "law" we are bound to protect and defend is the Constitution of the United States. The United States Supreme Court has held that punitive damages which exceed by more than nine times the actual damages are presumptively unconstitutional. The United States Court of Appeals for the Second Circuit, the Northern District of California, and the Eastern District of New York have held that statutory damages may well be subject to the same principle. No cases have held to the contrary. And two excellent law review articles have argued forcefully that the statutory damages scheme of the Copyright Act, providing for MINIMUM damages of $750 per infringement, is in fact unconstitutional as applied to the micropayment p2p file sharing cases -- i.e. if each 99-cent song file creates a $750 to $150,000 liability.
Indeed the RIAA's damages theory is not even consistent with basic tenets of copyright law, of long standing, that statutory damage awards are required to bear a reasonable relationship to the actual damages sustained.
So the DOJ should stay far away from defending this nonsense. They have much more important things to do than to ensure that college students be exposed to damages which even the courts recognize are ludicrous. See, e.g., the last 3 or 4 pages of Judge Davis's decision in Capitol v. Thomas.
The DOJ is just asking for some more time in which to decide whether intervention is appropriate. That is a good thing, not a bad thing. The more time they have to make up their mind, the more likely it is they will make the right decision and do the right thing, which in this case would be to do nothing and take no position and leave it up to the Judge to sort out whether the RIAA's theory is unconstitutional.