I do believe that authors and inventors should be able to enjoy the fruits of their labors for a limited time, in order to encourage them to be authors and inventors.
I do believe that traditional United States copyright law is fine, except that (a) the amendments to the term of copyright are unconstitutional, because they exceed the authority conferred by the Constitution, (b) "fair use" needs to be more clearly defined and expanded to provide some kind of safe harbor to creative people, and (c) the statutory damages sections need to be amended to reflect modern technology which permits mass reproduction of inexpensive files and micropayments in such areas as peer to peer file sharing. And by 'traditional United States copyright law' I would include the traditional customs and practices of copyright lawyers, who traditionally would seek to avoid, rather than precipitate, unnecessary litigation, by the use of cease and desist agreements.
The bizarre litigation campaign of the RIAA and MPAA and their European alter egos bears no resemblance to traditional United States copyright law.
Well I do not think viewing something, as opposed to making a fixed copy of something, implicates the reproduction right. I've never had to research the question, and am not familiar with the MAI case.
My immediate thought is that by providing a copy of a song to an agent of the copyright holder you're not violating copyright There is a long line of cases supporting your "immediate thought". You are correct. See, e.g., cases cited in footnote 4 at page 5 of defendant's memorandum of law in support of motion to dismiss in Warner v. Cassin.
After 40,000 cases, the courts are just now realizing that "making available" doesn't fly. Well, it's actually a pretty novel question. Until recently, no one brought this up, either to claim that it was infringement or that it wasn't. Courts rarely raise issues on their own, so if no litigants brought it up, a court wouldn't even look at the matter. To the best of my knowledge,
-the RIAA and MPAA began using the term in 2003;
-its legal sufficiency was first challenged in 2005 in Elektra v. Santangelo;
-in the fully briefed motions attacking the sufficiency of the theory, the first 6 decisions which came down all passed on the subject, neither upholding its sufficiency nor striking it down;
-then, starting in 2008 a string of decisions came down holding it to be insufficient:
-Atlantic v. Brennan, denying a default judgment application in Feb. 2008;
-Elektra v. Barker, holding the theory to be insufficient, but creating and suggesting an alternative similar theory of 'offering to distribute for purposes of distribution' in Mar. 2008;
-London-Sire v. Doe, in dictum finding the theory to be insufficient in Mar. 2008; and
-Atlantic v. Howell, holding the theory to be insufficient.
I am not aware of a fully briefed motion which ever found the RIAA's "making available" theory to be sufficient.
downloading.... is reproduction for copyright purposes Well there are at least 2 types of downloading. One that results in a copy being made. And one that is ephemeral, in RAM only, and which does not result in any copy being made. The latter type would not, in view, implicate the reproduction right.
Will that violation of ABA Rules have any repercussions either on the new trial or for Mr. Gabriel personally? As to the case itself, it could, if the Judge were to dismiss the case as a Rule 11 sanction. As to Mr. Gabriel personally, most definitely.
Is there any chance Mr. Gabriel could face some form of punishment for a breach of ethics in this case? And if so, would it potentially affect his pending judicial career? Yes.
My question now is: after the battle is truly joined, and the RIAA have cited Capitol v. Thomas in numerous stages of contested cases and in what some have claimed are improperly joined dragnet cases meant to shake down and terrortize the general public, how do they deal with their star case turning into a turd? I guess they'll do what they always do. Pretend it doesn't exist. And then if the judge or their opponent finds out about it, they'll lie.
It is astonishing that Ms. Thomas's lawyer did not cite the case, because he definitely knew about it. And in view of his not having cited it, it was a violation of the ABA Rules of Professional Conduct for Mr. Gabriel to have failed to call it to the court's attention. See ZDNet article.
Mr. Beckerman -
You were watching this trial. Wasn't there an argument just at the end of the trial where the Defendant said "There's this case here that you should follow" and the Plaintiff's lawyer said "I argued that case. That was an entirely different argument altogether and doesn't apply here."
Maybe it was a different case being cited, but I could swear that the argument happened. I seem to remember being surprised that the Defendant's lawyer didn't respond with arguments as to why the case was applicable. Without a transcript I can't say, but I am inclined to think that Judge Davis didn't make it up when he said that neither counsel brought it to his attention.
It's not just democracy, but this judge deserve real kudos for having the backbone to admit his error. Too often we here of those in power who realize they have made a mistake, and cover it up in lies or denial (often making worse mistakes in the process).
Rather than just referring to him as "the judge in Capitol V Thomas", his name is "Judge Michael Davis." If anyone happens to know him, I'd say that it's about time to congratulate him for being man enough to step up and make this admission. At the risk of being modded down for "Redundancy"......
So its the lawyer's fault that the judge didn't know about that particular case? Yes. We are in an adversary system. No lawyer and no judge knows all of the law. It's far too vast. Judges rely upon the lawyers to do their homework, to hone in on the issues that are involved in any particular case, and to focus the judge on what is relevant. Which is why it was so important for Ms. Thomas's lawyer to to represent his client "zealously". And why an opposing lawyer is REQUIRED BY LAW to disclose to the judge "controlling contrary authority". (No lawyer likes to do that last thing.... disclose controlling contrary authority... but it is an important and a binding rule which was designed to avoid just the type of embarrassment that has been caused here.)
But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?" Not so. The judge came to the realization on his own. He got no help from any of the lawyers, even Ms. Thomas's lawyer.
This is really a beautiful moment for our democracy, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it. I have to say... this is a big man.
The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution.
Basically, they might have to do it all over again, because the judge told the jury the wrong test to apply to determine if she broke the law. Everything you said is correct.
I would add that:
the judge didn't just make an error. He made the error because Ms. Thomas's lawyer, who should have told the judge about the National Car Rental case, didn't, and because the RIAA's lawyers -- who had an obligation under the Code of Professional Responsibility to inform the judge about the National Car Rental case -- also didn't.
So I expect one angry judge on July 1st.
Interestingly the chief architect of the RIAA's legal behavior won't be able to be there July 1st, as that's the day he starts his new job as a state court judge in Colorado. So one of his clones will have to take the heat for this misconduct.
If you read the briefs in UMG v. Lindor you'll see judicial authority and scholarly authority for the view that the punitive damages due process analysis should be applied to statutory damages analysis, particularly in the area of p2p file sharing.
The way I figure it, -the wholesale price per download is around 70 cents -the expenses including royalties payable are around 35 cents -therefore the profit per download is around 35 cents -UMG & friends were awarded $9250 per song file -9250 divided by.35=26,428.
I.e., the Jammie Thomas award bore a ratio to actual damages of 26,428:1.
UMG contends anything more than 10:1 is unconstitutional.
Therefore the maximum permissible award in the Thomas case should have been:
..isn't the UMG/Universal case worse? I mean, they were clearly using the unlicenced song for profit and an album version without it wasn't even available. Jammie Thomas, on the other hand, even it was true that she was sharing copyrighted songs, she wasn't profiting from it. Yes indeed it was much worse. They are contemptible hypocrites.
1. MediaSentry is a customer of Audible Magic software, the software in which Dr. Jacobson has an indirect financial interest, and uses Audible Magic software as part of its investigation. So when Dr. Jacobson testifies about how reliable MediaSentry is, he's talking about his customer, and when he testified that he doesn't know what their procedures are, he was lying.
2. The software process used by MediaSentry differs markedly from the way Richard Gabriel has sought to describe it in his representations to various courts.
3. Cara Duckworth, the RIAA's spokesperson, admits that
the RIAA can tell only when a song is being offered for users to illegally download; investigators have no way of knowing when someone else is actually downloading the song.
I believe that the RIAA has frequently been shown to persist in suing a person long after it has been clearly demonstrated not only that they had no case, but that they knew they had no case.
This is clear abuse of process. I believe that it *IS* illegal, even though prosecution for this occurs rarely to never.
If you think good thoughts about THAT activity, then our ideas of morality do not have a large intersection. I'm with you.
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I don't think you should generalize based on ONE trial. Especially one that even the Judge has recognized was conducted in a flawed manner.
I do believe that authors and inventors should be able to enjoy the fruits of their labors for a limited time, in order to encourage them to be authors and inventors.
I do believe that traditional United States copyright law is fine, except that
(a) the amendments to the term of copyright are unconstitutional, because they exceed the authority conferred by the Constitution,
(b) "fair use" needs to be more clearly defined and expanded to provide some kind of safe harbor to creative people, and
(c) the statutory damages sections need to be amended to reflect modern technology which permits mass reproduction of inexpensive files and micropayments in such areas as peer to peer file sharing.
And by 'traditional United States copyright law' I would include the traditional customs and practices of copyright lawyers, who traditionally would seek to avoid, rather than precipitate, unnecessary litigation, by the use of cease and desist agreements.
The bizarre litigation campaign of the RIAA and MPAA and their European alter egos bears no resemblance to traditional United States copyright law.
Well I do not think viewing something, as opposed to making a fixed copy of something, implicates the reproduction right. I've never had to research the question, and am not familiar with the MAI case.
-the RIAA and MPAA began using the term in 2003;
-its legal sufficiency was first challenged in 2005 in Elektra v. Santangelo;
-in the fully briefed motions attacking the sufficiency of the theory, the first 6 decisions which came down all passed on the subject, neither upholding its sufficiency nor striking it down;
-then, starting in 2008 a string of decisions came down holding it to be insufficient:
-Atlantic v. Brennan, denying a default judgment application in Feb. 2008;
-Elektra v. Barker, holding the theory to be insufficient, but creating and suggesting an alternative similar theory of 'offering to distribute for purposes of distribution' in Mar. 2008;
-London-Sire v. Doe, in dictum finding the theory to be insufficient in Mar. 2008; and
-Atlantic v. Howell, holding the theory to be insufficient.
I am not aware of a fully briefed motion which ever found the RIAA's "making available" theory to be sufficient.
And yes.
It is astonishing that Ms. Thomas's lawyer did not cite the case, because he definitely knew about it. And in view of his not having cited it, it was a violation of the ABA Rules of Professional Conduct for Mr. Gabriel to have failed to call it to the court's attention. See ZDNet article.
yep.
This is really a beautiful moment for our democracy, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it. I have to say... this is a big man.
I would add that:
the judge didn't just make an error. He made the error because Ms. Thomas's lawyer, who should have told the judge about the National Car Rental case, didn't, and because the RIAA's lawyers -- who had an obligation under the Code of Professional Responsibility to inform the judge about the National Car Rental case -- also didn't.
So I expect one angry judge on July 1st.
Interestingly the chief architect of the RIAA's legal behavior won't be able to be there July 1st, as that's the day he starts his new job as a state court judge in Colorado. So one of his clones will have to take the heat for this misconduct.
If you read the briefs in UMG v. Lindor you'll see judicial authority and scholarly authority for the view that the punitive damages due process analysis should be applied to statutory damages analysis, particularly in the area of p2p file sharing.
The way I figure it, .35=26,428.
-the wholesale price per download is around 70 cents
-the expenses including royalties payable are around 35 cents
-therefore the profit per download is around 35 cents
-UMG & friends were awarded $9250 per song file
-9250 divided by
I.e., the Jammie Thomas award bore a ratio to actual damages of 26,428:1.
UMG contends anything more than 10:1 is unconstitutional.
Therefore the maximum permissible award in the Thomas case should have been:
24 songs x $3.50=
$84
Slight discrepancy there, 222,000 versus 84
As TechDirt observed, this brief will come back to haunt them many times.
Well I'm pleased that they just got hit with a $107,834 attorneys fee award.
..isn't the UMG/Universal case worse? I mean, they were clearly using the unlicenced song for profit and an album version without it wasn't even available. Jammie Thomas, on the other hand, even it was true that she was sharing copyrighted songs, she wasn't profiting from it. Yes indeed it was much worse. They are contemptible hypocrites.1. MediaSentry is a customer of Audible Magic software, the software in which Dr. Jacobson has an indirect financial interest, and uses Audible Magic software as part of its investigation. So when Dr. Jacobson testifies about how reliable MediaSentry is, he's talking about his customer, and when he testified that he doesn't know what their procedures are, he was lying.
2. The software process used by MediaSentry differs markedly from the way Richard Gabriel has sought to describe it in his representations to various courts.
3. Cara Duckworth, the RIAA's spokesperson, admits that
He would have to recuse himself.
No problem.
Thanks.