Actually, these rulings against the RIAA seem to be getting more and more common. I think that word is getting around amongst the judges about these lawsuits and they are starting to get skeptical. We're not at the point yet where the RIAA will be forced to give up this tactic, they could probably tweak it a bit to get a few more years out of it, but it will likely get harder and harder for them to continue the lawsuits as they are today. Agreed. The courts were caught off guard by this onslaught. They are wising up now.
How stupid can these people be?.... Good question. I don't know the answer to it. Each time I think they've reached the mountain top, they come up with something even better. It's as tough as the other question I keep wondering about with these characters: "How mean and how heartless can someone who was born of a human mother be?" Each time I think I've seen how low they can sink, they find some way to sink even lower. These questions are simply unanswerable. Are your referring to the RIAA or the judges? I was talking about the RIAA's lawyers.
In American litigation (which I've been working in since 1974)... Not to make you feel old, but man, that's like 5 years before I was born! That's some dedication right there.Course, I'm also just some random young punk... >.> Keep up the good work man! I wouldn't call it 'dedication'. Let's call it a rut.
The law in this case is absolutely fine and dandy and very clear. However, the law about "making available" doesn't say what the RIAA wants the courts to believe it says. One high profile case is going back to the courts right now because the judge figured out that while a defendant (likely) made songs available for downloads, that wasn't "making available for further distribution" in the sense of copyright law. Because the judge was hoodwinked by the RIAA, he gave the wrong instructions to the jury, which therefore came to the wrong conclusions, so it has to go back to the court. Thanks, gnasher, well put.
Actually there is no copyright infringement claim that can be based on even 'offering to distribute' as in the example you posited. The courts have clearly held that the distribution right does not come into play unless you actually disseminate the copies. E.g., one of the leading cases involved putting it in a catalogue, which was clearly an "offer to distribute". But since no items had actually been sold from the offending catalogue, the Court held that no case for infringement of the distribution right existed.
In the University of Oregon, the RIAA conveniently "forgot" to tell the judge that the University had told the RIAA that it had gathered and was preserving the records. Did the RIAA attorneys suffer any consequences? If not, why not? It lessens confidence in the legal system. Nothing's been decided yet.
What are the rules about when ex parte orders can be issued? The rule is, what they are doing is totally illegal. In federal practice ex parte relief is only granted as a last resort. In these cases the RIAA lies through its teeth to get the order, falsely saying that the ISP or University will destroy the records if they are given notice of the application. It amazes me that there is any judge in the U.S. who would sign such an order. I think you'll be seeing more and more judges refusing, as news of the RIAA's lies spreads.
In the University of Oregon, the RIAA conveniently "forgot" to tell the judge that the University had told the RIAA that it had gathered and was preserving the records.
Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule.
I suspect NewYorkCountryLawyer has some clue about what he's talking about.
Also: According to the (current) page on it in wikipedia:
In Australian, Canadian, U.K., and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.
So it's "ex parte", not because the Does aren't present, but because the RIAA is asking the judge to rule without consulting the Does and giving them a chance to file a counterargument. If they are given a chance to file a response (even if they're not physically present - especially at the same time as the RIAA representatives which could lead to them being identified even if they should not be) then it's no longer "ex parte" according to the US usage. Thank you, Underground. That is exactly right. And the RIAA lawyers try to do everything ex parte. They don't want the judge to get confused by hearing the truth.
How stupid can these people be?.... Good question. I don't know the answer to it. Each time I think they've reached the mountain top, they come up with something even better.
It's as tough as the other question I keep wondering about with these characters:
"How mean and how heartless can someone who was born of a human mother be?" Each time I think I've seen how low they can sink, they find some way to sink even lower.
> 'Ex parte' does not really mean without notice. Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards.
If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question.
While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact.
So no, he didn't include the words "ex parte" just because he thought they sounded cool. Thank you. No I don't do anything to sound cool. I don't have it in me to sound cool.
In American litigation (which I've been working in since 1974), the term "ex parte" means "without notice".
Yeah but you're straying from the point. Of course it can be debated whether a particular move is or is not in the corporation's best interest. But the point is that a corporation, by its very nature and structure, is supposed to do what is in its own best interest at all times.
Which is pretty much what a sociopath is.
So as I said before, a corporation is pretty much a sociopath, one with a perpetual life.
Thanks for your responses.
"...but no director or officer ever got in trouble for legally making money for the shareholders."
If a set up a corporation that sold stock to the public and stated in my corporate charter that our business is making shoes, but instead of making shoes I invested in corn futures, would this be legal or actionable in a civil suit?
What if I made more money investing in corn futures than I would have making shoes? I don't know. Never saw a case like that.
The "charter" of a business corporation has basically nothing in it other than the authorization to conduct business. Some have more specific "purposes" clauses, but invariably it's basically authority to conduct business.
With not-for-profits, the purposes set forth in the "charter" are significant. For business corporations, no.
What is in the "best interests of the shareholders" is debatable, but no director or officer ever got in trouble for legally making money for the shareholders.
I have to disagree slightly here due to what I call "weasel phrasing". While you're absolutely correct that directors and such have a legal duty to do what is in the best interest of the shareholders, it doesn't necessarily follow that grabbing all the cash you can get is in the best interests, nor is making as much money as is humanly or inhumanely possible.
In fact, I would say that being a good corporate citizen is in the best interests of the shareholders. Of course there is plenty of room for many opinions here, because the phrase "best interests" is open to as many interpretations as there are people. While some interpretation are clearly wrong and illegal, there is still a very wide range of perfectly valid opinions.
It is statements like yours that give companies the excuse to be as bad as they want, and I for one disagree with that stance.
I will now be prepared to see you blast all of my reasoning out of the water.:D There's nothing wrong with your reasoning. I'm all for corporations being good citizens, whether it is or is not in the best interests of the shareholders' bank accounts. I would hold up Ben and Jerry's as a shining example. It did a lot of things which may have cut against the bottom line, but in the long run the company did fine.
And of course there are many examples we could give of the opposite; corporations which were supposedly acting in the shareholders' best interests, but their behavior got them into trouble with the law, and ultimately led to their ruination.
But I was just describing the reality of the American legal system, which basically instructs directors and officers that the one duty they have -- in their capacity as directors and officers -- is to their shareholders, and which does not recognize any other duty they might have to other 'stakeholders', such as (a) employees, (b) venders, (c) customers, and (d) society.
If you were installed as the head of a large insurance company sitting on a bunch of money, and started giving it away to help society, you watch what would happen to you. It wouldn't be pretty.
"So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life." Well there's a really depressing thought to start the day. Even more so given the reliability of the source. But nothing is gained by trying to hide from or deny unpleasant realities.
At the same time, I think it helps to explain why you do what you do. Thank you and keep up the good work. Your "RIAA got into trouble for doing this wrong" stories always make my day.
I sometimes think that corporations are essentially the legal equivalent of a genetic engineering experiment gone horribly awry. Well it doesn't have to be depressing. The corporation is a creature of statute. The same society that created the statute can also create laws and regulations -- and more importantly enforce its laws and regulations -- to keep the corporation in check.
The Ronald Reagan era, which we are still in, has attempted to destroy those laws and regulations. But it doesn't have to be that way.
I'm sorry I wasn't more clear. When I said that directors and officers are "pretty much required" to choose the corporation's self-interest, I meant legally required. I.e., they are legally considered fiduciaries to the shareholders. Their legal duty is to do what is in the best interests of the shareholders.
It is a sad state that most businesses have obligations to shareholders, but to suggest that all businesses only care about cash must, by extension, mean that this is true of all people. I disagree with that statement because
(a) an individual can choose, in any given moment, between self interest and trying to help someone else, but
(b) a corporate board of directors and corporate officers are pretty much required to choose the corporation's self interest. So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life.
I wouldn't say he's generalizing. He said, "Maybe not".
I think the point was that a jury will not always decide what we expect they would, or should, decide. Of course you're right that it's not predictable. But I would say that the close observers of the Capitol v. Thomas trial were sure she was going down. So it was predictable to an informed observer.
What I would say about juries is that they usually do the right thing. Which means the RIAA will usually lose.
Note that the RIAA has strictly avoided jury trials, until they had one where everything was in alignment: a Native American defendant who lived 120 miles away from the courthouse in a different community; a lawyer who was being held captive in the case; a few bad facts that could only be explained by a technological expert witness who could talk about zombies, etc.; defendant having no expert witness; a judge who was unfamiliar with the controlling copyright law issues. I could go on and on.
But, but... they're two big corporations....which one do I side with? Which one will get the Slashdot "little guy fighting the big guy" medal of honor? I just... I don't know. On one side you have a multi-billion dollar corporation that seems to want to make money... and then there's the same thing on the OTHER side. Oh noes! In such a situation, why don't we just side with the corporation whose lawyers actually read the statute? (That would be Google).
At any rate, this won't be so much a case on the evidence (it's pretty open what YouTube does) but on law. Expect a few tons of legal opinions on both sides and pretty much a guaranteed appeal to the Supreme Court. What I would really expect is a settlement. Viacom has made a mistake here. They usually don't take on people who can fight back. They are going to get destroyed if they don't back down.
Slashdot Mirror
Actually there is no copyright infringement claim that can be based on even 'offering to distribute' as in the example you posited. The courts have clearly held that the distribution right does not come into play unless you actually disseminate the copies. E.g., one of the leading cases involved putting it in a catalogue, which was clearly an "offer to distribute". But since no items had actually been sold from the offending catalogue, the Court held that no case for infringement of the distribution right existed.
Patience, my friend.
In the University of Oregon, the RIAA conveniently "forgot" to tell the judge that the University had told the RIAA that it had gathered and was preserving the records.
In the University of New Mexico case, the judge had this to say about the RIAA's "ex parte" request:
In the College of William & Mary case the judge just rejected the application outright.
It's as tough as the other question I keep wondering about with these characters:
"How mean and how heartless can someone who was born of a human mother be?" Each time I think I've seen how low they can sink, they find some way to sink even lower.
These questions are simply unanswerable.
In American litigation (which I've been working in since 1974), the term "ex parte" means "without notice".
Ex parte means without notice.
Yeah but you're straying from the point. Of course it can be debated whether a particular move is or is not in the corporation's best interest. But the point is that a corporation, by its very nature and structure, is supposed to do what is in its own best interest at all times.
Which is pretty much what a sociopath is.
So as I said before, a corporation is pretty much a sociopath, one with a perpetual life.
Unregulated laissez faire capitalism is evil; it's another word for highway robbery, with the rich robbing from the poor.
But with proper laws, and proper law enforcement, it can be okay.
The "charter" of a business corporation has basically nothing in it other than the authorization to conduct business. Some have more specific "purposes" clauses, but invariably it's basically authority to conduct business.
With not-for-profits, the purposes set forth in the "charter" are significant. For business corporations, no.
What is in the "best interests of the shareholders" is debatable, but no director or officer ever got in trouble for legally making money for the shareholders.
And of course there are many examples we could give of the opposite; corporations which were supposedly acting in the shareholders' best interests, but their behavior got them into trouble with the law, and ultimately led to their ruination.
But I was just describing the reality of the American legal system, which basically instructs directors and officers that the one duty they have -- in their capacity as directors and officers -- is to their shareholders, and which does not recognize any other duty they might have to other 'stakeholders', such as (a) employees, (b) venders, (c) customers, and (d) society.
If you were installed as the head of a large insurance company sitting on a bunch of money, and started giving it away to help society, you watch what would happen to you. It wouldn't be pretty.
No.
The Ronald Reagan era, which we are still in, has attempted to destroy those laws and regulations. But it doesn't have to be that way.
I'm sorry I wasn't more clear. When I said that directors and officers are "pretty much required" to choose the corporation's self-interest, I meant legally required. I.e., they are legally considered fiduciaries to the shareholders. Their legal duty is to do what is in the best interests of the shareholders.
The case is based on what you are referring to as the "old" copyright law. The DMCA merely provides the immunity.
(a) an individual can choose, in any given moment, between self interest and trying to help someone else, but
(b) a corporate board of directors and corporate officers are pretty much required to choose the corporation's self interest. So a corporation -- if not closely regulated -- is essentially a sociopath with perpetual life.
What I would say about juries is that they usually do the right thing. Which means the RIAA will usually lose.
Note that the RIAA has strictly avoided jury trials, until they had one where everything was in alignment:
a Native American defendant who lived 120 miles away from the courthouse in a different community;
a lawyer who was being held captive in the case;
a few bad facts that could only be explained by a technological expert witness who could talk about zombies, etc.;
defendant having no expert witness;
a judge who was unfamiliar with the controlling copyright law issues.
I could go on and on.