it's that the government is presently in thrall to large corporations who spend money to countervail government regulation that threatens their business model or profitability, regardless of the scientific basis for the regulation.
I.e., it's certain corporations and their stooges who "don't like science" when the truth costs them money.
The uncertainty attendant to what can be done in a movie production is a deliberate product of the intense lobbying efforts by Warner Bros and other big studios, who prefer uncertainty to statutory and regulatory guidelines which spell these things out with clarity.
Why, you might ask, would they prefer uncertainty as to what is or is not a 'fair use', or what is or is not subject to some other defense?
Because they have (or believe they have) hundreds of millions of dollars to work it out on a "case by case basis" -- i.e., through costly litigation.
If you're some guy doing a video cam production with a $10,000 credit card budget, and your lawyer can't tell you what you can and cannot do in your movie, it puts the big houses like Warner at a distinct advantage and prevents you from competing with them. Because you know that only after hundreds of thousands of dollars of litigation will you have your answer, and if you are victorious, your victory will have been pyrrhic.
This post is quite misleading. It gives the impression that the Court reinstated the verdict. The Court merely remanded the case for further proceedings, holding that the Due Process issue had been decided prematurely.
Otherwise praising Judge Gertner's handling of the case, the Court concluded that the District Judge's reasoning for bypassing the common law remittitur motion was incorrect, and that she must first decide the remittitur motion.
I've submitted my own post on this decision, which accurately describes the import of the decision.
How do they draw this conclusion from a single fossil? Couldn't it have been a deformed human? There are still humans born with the occasional pre-humanoid traits, like tails.
The RIAA proved to the satisfaction of the jury that Ms. Thomas-Rasset had downloaded 24 mp3 song files.
There was NO evidence of her being a "distributor" which would have required -proof of dissemination of copies -proof that the dissemination was to the public at large, AND -proof of a sale, another transfer of ownership, a rental, a lease, or a lending.
There was no proof of any of the above.
So all there was was 24 downloads.
Wholesale price [70 cents] minus saved expenses [~ 35 cents] = 35 cents lost profit from a lost sale. 35 cents x 15% [the ratio of lost sales to unauthorized downloads according to music industry statistical companies] = 5 cents. 5 cents x 24 files = $1.20.
The statutory damages should not have exceeded $100 in all.
Hi Ray - any chance of explaining why there is another trial here? It isn't clear from the article.
trial -> invalidated
trial 2 (effectively the first trial)
trial 2 appeal (it's an appeal)
trial 3 (why, how?)
thanks!
The 1st trial had to be done over because the Judge had been misled by the RIAA as to the applicable law on what it takes to violate the distribution right. The Judge later did some reading, realized his mistake in believing the RIAA lawyers, called a foul on himself, and scheduled Trial #2.
Although he had made similar mistakes in Trial #2, he didn't call a foul on himself there. The jury returned another huge verdict. There he was looking at the verdict from the damages standpoint only. He declined to reach the constitutional issue [in my view erroneously] and decided it on "remittitur" grounds [a general 'common law' remedy]. He granted "remittitur" and reduced the verdict to $54,000, but this was provisional only -- the RIAA was given an option to either accept the award, or have a new trial. The RIAA opted for a 3rd trial instead.
The judge set it down for a 3rd trial -- on the damages issue only. I don't know why the judge thought it appropriate to have a 3rd trial. I think he was wrong.
Well, yes and no. The RIAA's position is that her petition has been already asked and answered by the courts, twice.
In the first place, that would be irrelevant; that's what appeals are for, to correct mistakes by the lower court.
In the second place, the lower court ruled in Ms. Harper's favor on this issue. The District Judge ruled that she was NOT disqualified from asserting an innocent infringement defense by reason of copyright notices being affixed to some copies in some record store somewhere, which she had never seen.
I agree the sum awarded is excessive. If she appealed that in the Supreme Court she can get it reduced as the Constitution does place a 'reasonable amount' on damages and fines.
I agree that the $750 per mp3 file statutory damages award is constitutionally excessive, and should be struck down. However, that issue does not appear to be presented in connection with this particular appeal.
Ignorance is no excuse, and all of that, but I really think we'll start to see more of this. As filesharing becomes easier on the user's end, how is a new/naive/young user supposed to know it's illegal?
The law is quite explicit that if a person did not know they were infringing a copyright, then they are an innocent infringer, and the statutory damages are limited, unless... there was a copyright notice on the thing they were infringing. Then they don't qualify for the defense.
The 5th Circuit erroneously held that she is precluded from the defense because some other copy somewhere, which she had never seen, had a copyright notice.
Slashdot Mirror
it's that the government is presently in thrall to large corporations who spend money to countervail government regulation that threatens their business model or profitability, regardless of the scientific basis for the regulation.
I.e., it's certain corporations and their stooges who "don't like science" when the truth costs them money.
The uncertainty attendant to what can be done in a movie production is a deliberate product of the intense lobbying efforts by Warner Bros and other big studios, who prefer uncertainty to statutory and regulatory guidelines which spell these things out with clarity.
Why, you might ask, would they prefer uncertainty as to what is or is not a 'fair use', or what is or is not subject to some other defense?
Because they have (or believe they have) hundreds of millions of dollars to work it out on a "case by case basis" -- i.e., through costly litigation.
If you're some guy doing a video cam production with a $10,000 credit card budget, and your lawyer can't tell you what you can and cannot do in your movie, it puts the big houses like Warner at a distinct advantage and prevents you from competing with them. Because you know that only after hundreds of thousands of dollars of litigation will you have your answer, and if you are victorious, your victory will have been pyrrhic.
I hate "Big IP" as much as the next fanatic
Every time I see a Slashdot comment begin in that format, a little buzzer goes off in my head.
Yeah well now you're making me feel o.l.d.
You mean I'm not anonymous... damn, & here I thought by calling myself NewYorkCountryLawyer I was ensuring that no one would know who I am
Maybe I'm not really a lawyer. Maybe it's just a long nightmare from which I've yet to awaken.
Why thank you :)
Yeah, that would be nice for the RIAA and MPAA damage calculations to be used against them.
Welcome back NYCL. It's about time some sense is added to the discourse here.
Thank you. I don't know if I have any "sense", but I do know something about the law. If I truly had "sense" I think I would have studied programming.
My comment is still there.... http://yro.slashdot.org/comments.pl?sid=2432844&cid=37430004
Yeah this article is quite misleading.
This post is quite misleading. It gives the impression that the Court reinstated the verdict. The Court merely remanded the case for further proceedings, holding that the Due Process issue had been decided prematurely. Otherwise praising Judge Gertner's handling of the case, the Court concluded that the District Judge's reasoning for bypassing the common law remittitur motion was incorrect, and that she must first decide the remittitur motion. I've submitted my own post on this decision, which accurately describes the import of the decision.
. did they download copyrighted music to set the mood for their interspecies lovemaking?
Yes, but their mp3 players were hopelessly antiquated.
How do they draw this conclusion from a single fossil? Couldn't it have been a deformed human? There are still humans born with the occasional pre-humanoid traits, like tails.
I was wondering that myself
Ancient humans got more action than the userbase of Slashdot.
That's not saying much
The RIAA proved to the satisfaction of the jury that Ms. Thomas-Rasset had downloaded 24 mp3 song files.
There was NO evidence of her being a "distributor" which would have required
-proof of dissemination of copies
-proof that the dissemination was to the public at large, AND
-proof of a sale, another transfer of ownership, a rental, a lease, or a lending.
There was no proof of any of the above.
So all there was was 24 downloads.
Wholesale price [70 cents] minus saved expenses [~ 35 cents] = 35 cents lost profit from a lost sale.
35 cents x 15% [the ratio of lost sales to unauthorized downloads according to music industry statistical companies] = 5 cents.
5 cents x 24 files = $1.20.
The statutory damages should not have exceeded $100 in all.
Hi Ray - any chance of explaining why there is another trial here? It isn't clear from the article.
trial -> invalidated
trial 2 (effectively the first trial)
trial 2 appeal (it's an appeal)
trial 3 (why, how?)
thanks!
The 1st trial had to be done over because the Judge had been misled by the RIAA as to the applicable law on what it takes to violate the distribution right. The Judge later did some reading, realized his mistake in believing the RIAA lawyers, called a foul on himself, and scheduled Trial #2.
Although he had made similar mistakes in Trial #2, he didn't call a foul on himself there. The jury returned another huge verdict. There he was looking at the verdict from the damages standpoint only. He declined to reach the constitutional issue [in my view erroneously] and decided it on "remittitur" grounds [a general 'common law' remedy]. He granted "remittitur" and reduced the verdict to $54,000, but this was provisional only -- the RIAA was given an option to either accept the award, or have a new trial. The RIAA opted for a 3rd trial instead.
The judge set it down for a 3rd trial -- on the damages issue only. I don't know why the judge thought it appropriate to have a 3rd trial. I think he was wrong.
In fact, if she were sharing files through Kazaa, it is unlikely that more than a hundred uploads ever took place from any one song file.
They'd also sue the Graveyard and the coffin maker for Making Available the burial plot and the coffin.
Your comment, and several of the others, reminded me of the actual Michigan case, where the RIAA was suing a man in his 50's who died during the litigation. After the poor man passed away, the RIAA asked the judge to stay the proceedings for 60 days to allow the defendant's family enough time to grieve and then to allow them to start taking depositions of the deceased man's children.
You can't make this stuff up.
You, sir, are a paragon of what a lawyer should be.
Thank you for your kind words; much appreciated.
By forcing the issue, Harper is scaring them into the one scenario they were never willing to face - playing the game through to the end.
Well said.
Well, yes and no. The RIAA's position is that her petition has been already asked and answered by the courts, twice.
In the first place, that would be irrelevant; that's what appeals are for, to correct mistakes by the lower court.
In the second place, the lower court ruled in Ms. Harper's favor on this issue. The District Judge ruled that she was NOT disqualified from asserting an innocent infringement defense by reason of copyright notices being affixed to some copies in some record store somewhere, which she had never seen.
I agree the sum awarded is excessive. If she appealed that in the Supreme Court she can get it reduced as the Constitution does place a 'reasonable amount' on damages and fines.
I agree that the $750 per mp3 file statutory damages award is constitutionally excessive, and should be struck down. However, that issue does not appear to be presented in connection with this particular appeal.
Ignorance is no excuse, and all of that, but I really think we'll start to see more of this. As filesharing becomes easier on the user's end, how is a new/naive/young user supposed to know it's illegal?
The law is quite explicit that if a person did not know they were infringing a copyright, then they are an innocent infringer, and the statutory damages are limited, unless... there was a copyright notice on the thing they were infringing. Then they don't qualify for the defense.
The 5th Circuit erroneously held that she is precluded from the defense because some other copy somewhere, which she had never seen, had a copyright notice.
Its ruling was ridiculous.
And here I thought it was the RIAA who was vexatious.
Yeah, anyone who doesn't write them a check is vexatious.