NYCL, I'm surprised. With all of the egregious conduct you're documented, I'm surprised you're just making a declaration in opposition rather than a motion of your own for sanctions under FRCP 11(c)(2). Is your reasoning something you can share with us, or shall we just watch the master in action?;-)
I disagree that the cases are "funny". The recklessness expressed by the RIAA lawyers and the utter lack of common sense and decency in both professional and private conduct are disturbing. Please remember that the "accused" are scarred for life. Even if all wrongfully sued people get fully compensated, they still lose out because they have been stressed, bashed and abused.
Very, very true. You were deservably modded to +5.
In case anyone is wondering what the footnote actually said, here it is on page 17 of umg_lindor_081110DeclarationRB.pdf.
I decline to enter into a point-by-point rejoinder in defense of my modest foray into "blogging". Suffice it to say that (a) my law blog is irrelevant to the motion, (b) plaintiffs' counsel themselves rely upon the blog in the course of their legal work....(c) many in-house university counsels and student legal services offices refer their students to it....... (d) many law schools and colleges use it in their curricula..... (e) many reputable organizations have found the views expressed in it to be worthy of further in-depth consideration...... (f) it has been cited in law review articles.....(g) plaintiffs' counsel are not candid about their real problem with the blog, which is that its existence interferes with their tactic of attempting to conceal the litigation events and prior inconsistent statements they don't want others to know about, from judges, litigants, and law enforcement authorities
Emphasis mine. He then goes on to give a specific example of why the RIAA hates his blog, basically because it exposes the stupid things they do to the world.
Must be a fun job to use the law to destroy evil. Kind of like that old movie The Rainmaker. If I were Ray Beckerman, I would feel like I were in a movie.
Well if (a) I was getting paid like Jack Nicholson and (b) my clients weren't being hounded by Dracula... it would be fun.
But since it's the real world, I can't honestly say it's fun. To have to read their lies was very upsetting. Correcting each and every one was grueling. The fun part was getting done, and making short shrift of their massive deception.
Under the Copyright Act, "distribution" is -dissemination -of copies -to the public -by sale or other transfer of ownership, or by license, lease, or lending.
The RIAA has no proof of ANY of the above.
They teach you early on in law school that damages can't be based on speculation.
By the way it would be virtually impossible for a FastTrack or Gnutella user to distribute more than a hundred or so.
This was under the "Moral" section, not the "Legal" section. You ask whether she had "power/ability". They are 2 different questions. Legally she does not have the power. However, being a federal judge, she has the "ability" to persuade lawyers to take cases pro bono. In fact, the court probably has a pro bono panel of lawyers who have volunteered to serve. Not to mention legal clinics, etc. If a federal judge calls up a lawyer and asks him to take a case pro bono, most lawyers would not say no. She only has to take 2 minutes of her time to do it... and in fact, on a net/net basis, she'd spend less time making those phone calls, than the time she spends engaging in meaningless pitter patter with pro se litigants. I.e. it doesn't cost her a dime. In fact it appears she made such a call to Prof. Nesson, and here he is, already doing battle with the Clone Army. So at least, after 5 years, she's starting to wake up.
In this case it is note even about presenting a better case, it is all about a complete abuse of the system, why a company has basically set up a business to specifically target people who can not afford to defend themselves against the civil action and extorting money from them, Every time the RIAA has accidentally picked a litigant who can afford a legal defence they have lost, settled it out of court and buried it under non-disclosure agreements, except for one very notable case, that seeks to fully expose their pernicious behaviour.
It has to be the grossest and most public exploitation of the civil legal system, which emphatically displays the inequalities of a legal system, where one side simply needs to stretch out the case to the point where the other side ca[n] no[...] longer afford to defend themselves completely regardless of the merits of the case, in the case the defendants can not even afford the start of their defence let alone the tens of thousands of dollars to successfully conclude the case and win.
That the legal system and government have stood by and said nothing, whilst a legal firm has basically set up an extortion racket targeting tens of thousands of victims, makes them complicit accessories to a very public crime that makes a mockery of principles of equal justice for all.
In this case it is note even about presenting a better case, it is all about a complete abuse of the system, why a company has basically set up a business to specifically target people who can not afford to defend themselves against the civil action and extorting money from them, Every time the RIAA has accidentally picked a litigant who can afford a legal defence they have lost, settled it out of court and buried it under non-disclosure agreements, except for one very notable case, that seeks to fully expose their pernicious behaviour.
It has to be the grossest and most public exploitation of the civil legal system, which emphatically displays the inequalities of a legal system, where one side simply needs to stretch out the case to the point where the other side ca[n] no[...] longer afford to defend themselves completely regardless of the merits of the case, in the case the defendants can not even afford the start of their defence let alone the tens of thousands of dollars to successfully conclude the case and win.
That the legal system and government have stood by and said nothing, whilst a legal firm has basically set up an extortion racket targeting tens of thousands of victims, makes them complicit accessories to a very public crime that makes a mockery of principles of equal justice for all.
Is she not, as judge, ultimately responsible for seeing justice served in her courtroom? Surely she bears some responsibility, at least morally if not legally for what happens in her court. I think that's what is being suggested here.
I think the judge is responsible for seeing justice served in her courtroom and for enforcing the laws. Let me break down your point into two points.
"Legally"In my view Judge Gertner has erred in a number of respects, routinely: -consolidating all of the cases although the defendants are unrelated; -sustaining complaints which do not meet proper pleading standards; -sustaining default judgment applications based on insufficient evidence and faulty legal reasoning; -sustaining defective ex parte discovery motions; -allowing ex parte motion practice in the first place; -routinely allowing incompetent evidence to be used; -routinely awarded unconstitutionally excessive damages. These are absolute legal errors. These are things she was legally required to do right, and has done wrong.
"Morally"Additionally, there are discretionary matters which she could have and should have done differently; here is where the "morally" comes in. E.g., -she should have required each record company to bring an officer of the company to settlement conferences -she should not have combined the settlement conferences and other appearances for the RIAA's convenience -she should have denied the pro hac vice motions of the Colorado lawyers, and of the Kansas lawyers who preceded them -she should have ruled against the record companies on discretionary discovery matters where the cases did not warrant such expense, hardship, and terror; -she should not have permitted settlements of cases by innocent people, which represents the majority of the defendants who settled; -she should have denied the hard drive examinations; -she should have seen to it 5 years earlier that every person who needed legal representation had legal representation; -she should have seen to it that helpless people were not pursued.
Until you rip the RIAA's financial guts through sanctions out you aren't going to stop them. A stern talking to just isn't the same thing.
It's not so much the "financial guts" of the RIAA. It's the lawyers, and it's not really about finance. An award of sanctions against an attorney is a black mark he or she will bear throughout his or her career.
And yes, sanctions awards are richly deserved against these lawyers, IMHO.
As I said in my "Editor's Note" in the underlying article she has contributed to the imbalance:
[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]
Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.
Keep it up Ray...
and you're going to give lawyers a good name.
Thanks, action. But the real credit goes to Dan Burnett, the British Columbia lawyer who stood up for the right thing, and probably did it pro bono. My hat is off to him.
C'mon, NYCL, this is so unlike you! The name of the judge is Kelleher, NOT Keller.
"If you can't get the name right, what else are you getting wrong?" - a CBC announcer.
Sorrrrreeeeeeee.
Nothing else is wrong. There's not much room for error in my stories, since I supply you with the actual litigation document enabling you to catch me in any errors, as you just did. Thanks for catching it. Apologies to Judge Kelleher.
Here's how you can put a dollar amount on things:
I'm a professional commercial photographer. I do advertising work, editorial (newspaper/magazine) and documentary work.
For an in-the-clear commercial infringement, I typically seek the cost of the shoot plus 5x the 'market rate' for the run of the photo; and any lawyers' fees I'm entitled to recoup.
Why? To get fairly compensated for what was taken from me, and to make it painful enough to the infringer (usually a company, occasionally a mom-and-pop publisher/advertiser) to realize that next time, they're better off paying market value than 'borrowing' someone else's work to make a buck.
But then, I'm not a parasite. I wouldn't sue you for downloading a picture and making it your desktop wallpaper. I would sue your ass off if you downloaded an image, and used it to sell your business, illustrate your book/publication or sell art prints of the same.
Technically, I would be legally in bounds to sue for infringement if the work appeared on your Web site under a lot (granted, not all) of circumstances. Most of the time, I don't care. Unless you're directly or indirectly profiting from having the work there, toss me a credit, link and an email asking permission.
Copyright is an act of moderation, and I firmly believe in letting the punishment fit the crime/infraction.
I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.
Not so. Probably the majority of people being sued did not do the file sharing for which they are being sued. The RIAA's so-called investigation goes no further than purporting to identify a person who paid for an internet access account. Most times the victims are parents, grandparents, neighbors, roommates, etc., and oftentimes they do not even have a clue as to who actually did have the filesharing account the RIAA is pursuing.
Amazingly, I manage to not be annoyed at speed cameras either, because I don't break the speed limit.
Yes, life gets very complex if you think the law shouldn't apply to you, but you get caught. That is how it is supposed to work.
Assuming, for purposes of the discussion, that (1) you are as perfect as you claim to be, and never, ever, make a mistake, and (2) the only people the RIAA ever targets are people who actually did use a file sharing program..... it should still trouble you if one of your less perfect neighbors is subjected to punishment that is grossly disproportionate to any actual harm that was done. The whole subject of this article was not whether the defendant, who was 16 years old at the time, did it.... she admitted she'd done it. The question is whether she should have to pay 26,000 times the actual damage, or 2,200 times the actual damage, or 600 times the actual damage... or maybe, just maybe, something a little bit more proportionate to the actual damages sustained. The law is supposed to be about fairness and justice and reason and proportionality. When it allows shockingly disproportionate penalties, it calls the whole legal process into disrepute.
In the age of 'micropayments' for MP3 downloads of 99 cents or less, tacking on damages of $750 or more for a single song is ludicrous, and the entire world is basically laughing at the United States in the wake of the Jammie Thomas trial. I suggest you read Judge Davis's comments about the trial verdict handed down in his courtroom and his plea for Congressional action to prevent such a thing from reoccurring, or this excellent law review article on the unconstitutionality of these disproportionate damages theories, if you are interested in the subject.
Actually I think you were marked "troll" because you were overreacting to, and/or mischaracterizing, the post to which you were responding. He didn't say he 'supported copyright infringement', he said that he thought the damages awards were excessive, and something more like actual damages plus a penalty of treble damages would be more like it. To extrapolate from that that he was in favor of copyright infringement is unfair.
Someone else in this thread pointed out that the damages should not be compared to the cost of downloading a song, but to the cost of the right to upload one.
Interesting point.
It's not really interesting, it's just supremely illogical. When someone buys and pays for a distribution right they then proceed to resell the item, and receive money for it, and they have the exclusive for a territory (in this case the entire internet I guess). That would be a violation of a distribution right if the whole transaction were unauthorized. And if the person who really did own the copyright was prevented from distributing the product or marketing the distribution right in the product, then his damages would be the value of the distribution right.
As you know, that did not occur here. None of that occurred here. Here, there is not even evidence that she sent anyone a copy.
In fact, in this case the defendant did not "distribute" the recording, within the meaning of the Copyright Act, at all. Under the statute for there to be distribution there has to be -a dissemination of copies (no proof that that occurred here) -to the public (no proof that that occurred here) -by a sale or other transfer of ownership, or by a license, a lease, or a lending (no proof that that occurred here). So to award damages based on the value of the purchase of a distribution right would make no sense since there was no such thing.
Just curious, who came up with 33 cents per file as the "actual" damages and why?
It's my estimate. Wholesale price 70 cents. -Expenses ~35 cents. Lost profit ~35 cents.
There was evidence of copying. She admitted it. The damages for that would be at best ~35 cents.
There was no evidence she disseminated a copy to anyone else, or that she did so pursuant to a "sale or other transfer of ownership" or "license, lease, or lending." It's rule number 1 that you can't award damages based on speculation.
WTF kind of bullshit is "If you can see the MAC address of the transmitting device you could see whether that device was wired or wireless" and "If I actually captured the wireless packet, its MAC address is larger than the MAC address of a -- on the wired side, along with the frame format is different?" I'm pretty sure MAC addresses are all 48 bits.
And am i reading this right? The entirety of the evidence is a screenshot from MediaSentry, because there was nothing actually found on the HD?
he was definitely screwing with you on the whole public/private IP address thing. He had to be intentionally misleading you or else be a total idiot. He knew damn good and well what you were asking. I myself have multiple computers NATed behind a router. One of my buddies has a fully open wireless zone firewalled off from the rest of his LAN. All NATed behind one public IP, of course.
Well I don't know if he is an idiot or not, but he certainly didn't mislead anyone. He just put himself in a position that he would get completely killed at a trial, which is probably one of the reasons why they're trying to weasel out of the case now.
Slashdot Mirror
How would NYCL react to his being cast as Jack Nicholson?
I don't really care who they cast as me, as long as they give me a nice fee -- like maybe 5% of what Jack Nicholson gets for a movie.
NYCL, I'm surprised. With all of the egregious conduct you're documented, I'm surprised you're just making a declaration in opposition rather than a motion of your own for sanctions under FRCP 11(c)(2). Is your reasoning something you can share with us, or shall we just watch the master in action? ;-)
Can't comment on that.
Here's a link to Rule 11.
I disagree that the cases are "funny". The recklessness expressed by the RIAA lawyers and the utter lack of common sense and decency in both professional and private conduct are disturbing. Please remember that the "accused" are scarred for life. Even if all wrongfully sued people get fully compensated, they still lose out because they have been stressed, bashed and abused.
Very, very true. You were deservably modded to +5.
In case anyone is wondering what the footnote actually said, here it is on page 17 of umg_lindor_081110DeclarationRB.pdf.
I decline to enter into a point-by-point rejoinder in defense of my modest foray into "blogging". Suffice it to say that (a) my law blog is irrelevant to the motion, (b) plaintiffs' counsel themselves rely upon the blog in the course of their legal work....(c) many in-house university counsels and student legal services offices refer their students to it ....... (d) many law schools and colleges use it in their curricula ..... (e) many reputable organizations have found the views expressed in it to be worthy of further in-depth consideration...... (f) it has been cited in law review articles.....(g) plaintiffs' counsel are not candid about their real problem with the blog, which is that its existence interferes with their tactic of attempting to conceal the litigation events and prior inconsistent statements they don't want others to know about, from judges, litigants, and law enforcement authorities
Emphasis mine. He then goes on to give a specific example of why the RIAA hates his blog, basically because it exposes the stupid things they do to the world. Must be a fun job to use the law to destroy evil. Kind of like that old movie The Rainmaker. If I were Ray Beckerman, I would feel like I were in a movie.
Well if (a) I was getting paid like Jack Nicholson and (b) my clients weren't being hounded by Dracula... it would be fun.
But since it's the real world, I can't honestly say it's fun. To have to read their lies was very upsetting. Correcting each and every one was grueling. The fun part was getting done, and making short shrift of their massive deception.
I'd say more than that, NYCL is a bona-fide Freedom Fighter. Thanks, NYCL -- you're my kind of hero!
Thanks, clang_jangle. The support is much appreciated.
The damages are based on DISTRIBUTION
Under the Copyright Act, "distribution" is
-dissemination
-of copies
-to the public
-by sale or other transfer of ownership, or by license, lease, or lending.
The RIAA has no proof of ANY of the above.
They teach you early on in law school that damages can't be based on speculation.
By the way it would be virtually impossible for a FastTrack or Gnutella user to distribute more than a hundred or so.
This was under the "Moral" section, not the "Legal" section. You ask whether she had "power/ability". They are 2 different questions. Legally she does not have the power. However, being a federal judge, she has the "ability" to persuade lawyers to take cases pro bono. In fact, the court probably has a pro bono panel of lawyers who have volunteered to serve. Not to mention legal clinics, etc. If a federal judge calls up a lawyer and asks him to take a case pro bono, most lawyers would not say no. She only has to take 2 minutes of her time to do it... and in fact, on a net/net basis, she'd spend less time making those phone calls, than the time she spends engaging in meaningless pitter patter with pro se litigants. I.e. it doesn't cost her a dime. In fact it appears she made such a call to Prof. Nesson, and here he is, already doing battle with the Clone Army. So at least, after 5 years, she's starting to wake up.
In this case it is note even about presenting a better case, it is all about a complete abuse of the system, why a company has basically set up a business to specifically target people who can not afford to defend themselves against the civil action and extorting money from them, Every time the RIAA has accidentally picked a litigant who can afford a legal defence they have lost, settled it out of court and buried it under non-disclosure agreements, except for one very notable case, that seeks to fully expose their pernicious behaviour. It has to be the grossest and most public exploitation of the civil legal system, which emphatically displays the inequalities of a legal system, where one side simply needs to stretch out the case to the point where the other side ca[n] no[...] longer afford to defend themselves completely regardless of the merits of the case, in the case the defendants can not even afford the start of their defence let alone the tens of thousands of dollars to successfully conclude the case and win. That the legal system and government have stood by and said nothing, whilst a legal firm has basically set up an extortion racket targeting tens of thousands of victims, makes them complicit accessories to a very public crime that makes a mockery of principles of equal justice for all.
Well spoken. That just about sums it up.
In this case it is note even about presenting a better case, it is all about a complete abuse of the system, why a company has basically set up a business to specifically target people who can not afford to defend themselves against the civil action and extorting money from them, Every time the RIAA has accidentally picked a litigant who can afford a legal defence they have lost, settled it out of court and buried it under non-disclosure agreements, except for one very notable case, that seeks to fully expose their pernicious behaviour. It has to be the grossest and most public exploitation of the civil legal system, which emphatically displays the inequalities of a legal system, where one side simply needs to stretch out the case to the point where the other side ca[n] no[...] longer afford to defend themselves completely regardless of the merits of the case, in the case the defendants can not even afford the start of their defence let alone the tens of thousands of dollars to successfully conclude the case and win. That the legal system and government have stood by and said nothing, whilst a legal firm has basically set up an extortion racket targeting tens of thousands of victims, makes them complicit accessories to a very public crime that makes a mockery of principles of equal justice for all.
Is she not, as judge, ultimately responsible for seeing justice served in her courtroom? Surely she bears some responsibility, at least morally if not legally for what happens in her court. I think that's what is being suggested here.
I think the judge is responsible for seeing justice served in her courtroom and for enforcing the laws. Let me break down your point into two points.
:
"Legally"In my view Judge Gertner has erred in a number of respects, routinely
-consolidating all of the cases although the defendants are unrelated;
-sustaining complaints which do not meet proper pleading standards;
-sustaining default judgment applications based on insufficient evidence and faulty legal reasoning;
-sustaining defective ex parte discovery motions;
-allowing ex parte motion practice in the first place;
-routinely allowing incompetent evidence to be used;
-routinely awarded unconstitutionally excessive damages. These are absolute legal errors. These are things she was legally required to do right, and has done wrong.
"Morally"Additionally, there are discretionary matters which she could have and should have done differently; here is where the "morally" comes in. E.g.,
-she should have required each record company to bring an officer of the company to settlement conferences
-she should not have combined the settlement conferences and other appearances for the RIAA's convenience
-she should have denied the pro hac vice motions of the Colorado lawyers, and of the Kansas lawyers who preceded them
-she should have ruled against the record companies on discretionary discovery matters where the cases did not warrant such expense, hardship, and terror;
-she should not have permitted settlements of cases by innocent people, which represents the majority of the defendants who settled;
-she should have denied the hard drive examinations;
-she should have seen to it 5 years earlier that every person who needed legal representation had legal representation;
-she should have seen to it that helpless people were not pursued.
Until you rip the RIAA's financial guts through sanctions out you aren't going to stop them. A stern talking to just isn't the same thing.
It's not so much the "financial guts" of the RIAA. It's the lawyers, and it's not really about finance. An award of sanctions against an attorney is a black mark he or she will bear throughout his or her career.
And yes, sanctions awards are richly deserved against these lawyers, IMHO.
she didn't create the imbalance
As I said in my "Editor's Note" in the underlying article she has contributed to the imbalance:
[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]
Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.
Thank you, Gutboy. I've actually written an article about the very issue of the economic "imbalance" in these cases, and the unlevel "playing field", Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations. It was written for the "equal access to justice" issue of the ABA Judges Journal.
Keep it up Ray... and you're going to give lawyers a good name.
Thanks, action. But the real credit goes to Dan Burnett, the British Columbia lawyer who stood up for the right thing, and probably did it pro bono. My hat is off to him.
C'mon, NYCL, this is so unlike you! The name of the judge is Kelleher, NOT Keller. "If you can't get the name right, what else are you getting wrong?" - a CBC announcer.
Sorrrrreeeeeeee.
Nothing else is wrong. There's not much room for error in my stories, since I supply you with the actual litigation document enabling you to catch me in any errors, as you just did. Thanks for catching it. Apologies to Judge Kelleher.
It makes me happy to see such rulings. This judge seems to have had his head on his shoulders. Thanks for the post.
My pleasure, Jane.
Here's how you can put a dollar amount on things: I'm a professional commercial photographer. I do advertising work, editorial (newspaper/magazine) and documentary work. For an in-the-clear commercial infringement, I typically seek the cost of the shoot plus 5x the 'market rate' for the run of the photo; and any lawyers' fees I'm entitled to recoup. Why? To get fairly compensated for what was taken from me, and to make it painful enough to the infringer (usually a company, occasionally a mom-and-pop publisher/advertiser) to realize that next time, they're better off paying market value than 'borrowing' someone else's work to make a buck. But then, I'm not a parasite. I wouldn't sue you for downloading a picture and making it your desktop wallpaper. I would sue your ass off if you downloaded an image, and used it to sell your business, illustrate your book/publication or sell art prints of the same. Technically, I would be legally in bounds to sue for infringement if the work appeared on your Web site under a lot (granted, not all) of circumstances. Most of the time, I don't care. Unless you're directly or indirectly profiting from having the work there, toss me a credit, link and an email asking permission. Copyright is an act of moderation, and I firmly believe in letting the punishment fit the crime/infraction.
A rational voice.
How refreshing these days.
I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.
Not so. Probably the majority of people being sued did not do the file sharing for which they are being sued. The RIAA's so-called investigation goes no further than purporting to identify a person who paid for an internet access account. Most times the victims are parents, grandparents, neighbors, roommates, etc., and oftentimes they do not even have a clue as to who actually did have the filesharing account the RIAA is pursuing.
Amazingly, I manage to not be annoyed at speed cameras either, because I don't break the speed limit. Yes, life gets very complex if you think the law shouldn't apply to you, but you get caught. That is how it is supposed to work.
Assuming, for purposes of the discussion, that (1) you are as perfect as you claim to be, and never, ever, make a mistake, and (2) the only people the RIAA ever targets are people who actually did use a file sharing program..... it should still trouble you if one of your less perfect neighbors is subjected to punishment that is grossly disproportionate to any actual harm that was done. The whole subject of this article was not whether the defendant, who was 16 years old at the time, did it.... she admitted she'd done it. The question is whether she should have to pay 26,000 times the actual damage, or 2,200 times the actual damage, or 600 times the actual damage... or maybe, just maybe, something a little bit more proportionate to the actual damages sustained. The law is supposed to be about fairness and justice and reason and proportionality. When it allows shockingly disproportionate penalties, it calls the whole legal process into disrepute.
In the age of 'micropayments' for MP3 downloads of 99 cents or less, tacking on damages of $750 or more for a single song is ludicrous, and the entire world is basically laughing at the United States in the wake of the Jammie Thomas trial. I suggest you read Judge Davis's comments about the trial verdict handed down in his courtroom and his plea for Congressional action to prevent such a thing from reoccurring, or this excellent law review article on the unconstitutionality of these disproportionate damages theories, if you are interested in the subject.
Very much unlike.
Actually I think you were marked "troll" because you were overreacting to, and/or mischaracterizing, the post to which you were responding. He didn't say he 'supported copyright infringement', he said that he thought the damages awards were excessive, and something more like actual damages plus a penalty of treble damages would be more like it. To extrapolate from that that he was in favor of copyright infringement is unfair.
I think that the RIAA employs soul-eating undead
I can confirm.
Someone else in this thread pointed out that the damages should not be compared to the cost of downloading a song, but to the cost of the right to upload one. Interesting point.
It's not really interesting, it's just supremely illogical. When someone buys and pays for a distribution right they then proceed to resell the item, and receive money for it, and they have the exclusive for a territory (in this case the entire internet I guess). That would be a violation of a distribution right if the whole transaction were unauthorized. And if the person who really did own the copyright was prevented from distributing the product or marketing the distribution right in the product, then his damages would be the value of the distribution right.
As you know, that did not occur here. None of that occurred here. Here, there is not even evidence that she sent anyone a copy.
In fact, in this case the defendant did not "distribute" the recording, within the meaning of the Copyright Act, at all. Under the statute for there to be distribution there has to be
-a dissemination of copies (no proof that that occurred here)
-to the public (no proof that that occurred here)
-by a sale or other transfer of ownership, or by a license, a lease, or a lending (no proof that that occurred here). So to award damages based on the value of the purchase of a distribution right would make no sense since there was no such thing.
Just curious, who came up with 33 cents per file as the "actual" damages and why?
It's my estimate.
Wholesale price 70 cents.
-Expenses ~35 cents.
Lost profit ~35 cents.
There was evidence of copying. She admitted it. The damages for that would be at best ~35 cents.
There was no evidence she disseminated a copy to anyone else, or that she did so pursuant to a "sale or other transfer of ownership" or "license, lease, or lending." It's rule number 1 that you can't award damages based on speculation.
WTF kind of bullshit is "If you can see the MAC address of the transmitting device you could see whether that device was wired or wireless" and "If I actually captured the wireless packet, its MAC address is larger than the MAC address of a -- on the wired side, along with the frame format is different?" I'm pretty sure MAC addresses are all 48 bits. And am i reading this right? The entirety of the evidence is a screenshot from MediaSentry, because there was nothing actually found on the HD?
Yes you're reading it right.
I'm sorry to say.
he was definitely screwing with you on the whole public/private IP address thing. He had to be intentionally misleading you or else be a total idiot. He knew damn good and well what you were asking. I myself have multiple computers NATed behind a router. One of my buddies has a fully open wireless zone firewalled off from the rest of his LAN. All NATed behind one public IP, of course.
Well I don't know if he is an idiot or not, but he certainly didn't mislead anyone. He just put himself in a position that he would get completely killed at a trial, which is probably one of the reasons why they're trying to weasel out of the case now.