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NewYorkCountryLawyer Debates RIAA VP
Posted by
ScuttleMonkey
on Sat May 03, 2008 01:21 AM
from the defying-logic dept.
from the defying-logic dept.
NewYorkCountryLawyer writes "At Fordham Law School's annual IP Law Conference this year, Slashdot member NewYorkCountryLawyer had a chance to square off with Kenneth Doroshow, a Senior Vice President of the RIAA, over the subject of copyright statutory damages. Doroshow thought the Jammie Thomas verdict of $222,000 was okay, he said, since Ms. Thomas might have distributed 10 million unauthorized copies. NYCL, on the other hand, who has previously derided the $9,250-per-song file verdict as 'one of the most irrational things [he has] ever seen in [his] life in the law', stated at the Fordham conference that the verdict had made the United States 'a laughingstock throughout the world.' An Australian professor on the panel said, 'The comment has been made a few times that America is out of whack and you are a laughingstock in the rest of the world. As the only non-American on the panel, that's true. We do see the cases like Thomas in our newspapers, and we think: "Wow, those crazy Americans, what are they up to now?"
This whole notion of statutory damages is not something that we have within our Copyright Act. You actually have to be able to prove damage for you to be able to be compensated for that.' NYCL also got to debate the 'making available' issue, saying that there was no 'making available' right in US copyright law, despite the insistence of the program's moderator, the 'keynote' speaker, and a 'majority vote' of the audience that there was such a right. The next day, two decisions came down, and a month later yet another decision came down, all rejecting the 'making available' theory."
Related Stories
[+]
News: RIAA Sues Homeless Man 245 comments
NewYorkCountryLawyer writes "In a Manhattan case, Warner v. Berry, the RIAA sued a man who lives in a homeless shelter, leaving a copy of the summons and complaint not at the homeless shelter, but at an apartment the man had occupied in better times, and had long since vacated. The RIAA's lawyers were threatened with sanctions by the Magistrate Judge in the case, for making misleading representations to the Court which the Magistrate felt were intentional. The District Judge, however, disagreed with imposing sanctions, giving the RIAA's lawyers 'as officers of the Court the benefit of the doubt,' and instead concluded — in his 6-page opinion (PDF) — that the RIAA's lawyers were just being 'sloppy' and had not made the misstatements for an improper purpose.'"
[+]
News: Marshall University Challenges RIAA 117 comments
NewYorkCountryLawyer writes "Marshall University, in Huntington, West Virginia, has become just the second US college or university to show the moxie to stand up for its students instead of instantly caving in to RIAA extortion. In February, Marshall, represented by the Attorney General of the State of West Virginia, made a motion to quash the RIAA's subpoena for student identities, pointing out in exquisite detail in its long-time IT guy's affidavit (PDF) the impossibility of identifying copyright 'infringers' based on the RIAA's meager evidence. Unfortunately, the Magistrate — under the mistaken impression that the RIAA isn't going to sue the identified students, but merely wants to talk to them — recommended that the subpoena be okayed by the District Judge (PDF). It is not yet known whether Marshall will be filing objections. The first US college or university known to have attacked the RIAA's subpoena was the University of Oregon, which — also represented by its state's Attorney General — made a motion to quash last November, and even questioned the legality of the RIAA's methods. The Oregon motion is still pending."
[+]
News: ISP Sued By Irish RIAA 191 comments
NewYorkCountryLawyer writes "An ISP in Ireland has been sued by the Big Four record labels because its subscribers have engaged in P2P sharing of the record companies' song files. The record companies claim the ISP should be buying Audible Magic's CopySense, the software being peddled by the RIAA's expert witness, which supposedly would filter out copyright infringement. Of course, not everyone agrees."
[+]
News: BusinessWeek Takes On the RIAA 241 comments
NewYorkCountryLawyer writes "BusinessWeek magazine has gone medieval on the RIAA, recounting in grisly detail the cruel ordeal to which the RIAA has subjected a completely innocent defendant, Tanya Andersen of Oregon. Nobody can read the story and come to any other conclusion than that the RIAA and its lawyers are total jerks. Of course we've been reading about Atlantic v. Andersen on p2pnet.net and on my blog, and discussing it here, but there's something extra special about a mainstream publication like Business Week really letting them have it."
[+]
News: Arizona Judge Shoots Down RIAA Theories 204 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
[+]
Games: RIAA Exec Moves Over To Gaming Industry 66 comments
NewYorkCountryLawyer writes "The same RIAA executive who defended a $222,000 verdict over 24 song files at an academic conference back in March, Kenneth Doroshow, is leaving the RIAA and joining the Entertainment Software Association ('ESA'). As I said on my blog, if Mr. Doroshow 'accomplishes for game manufacturers what he accomplished for the recording industry, I would say the industry's prospects are bleak.'"
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First post! (Score:5, Funny)
Re:First post! (Score:4, Insightful)
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Re:First post! (Score:4, Insightful)
The lawyers always win...
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Re:First post! (Score:5, Funny)
The lawyers always win...
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Re:First post! (Score:5, Funny)
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There is no 'I told you so' more poignent (Score:5, Insightful)
One word sums this up: SWEEEEEET!
It took time but the RIAA and their lawyers are starting to look like the ass cabbage that they really are. It's quite nice to see that
Re: (Score:3, Insightful)
Judges and Common Sense. (Score:5, Insightful)
That's two judges and both of them took more time and trouble to understand the issue. That says a lot about Beckman's position.
The absurdity of the copyright warrior opinion was well represented at the debate itself. When talking about "common sense" they failed to use much of it. Instead of looking at the intent of copyright law as established in the US Constitution, they picked apart meanings of various sections of copyright code and cases that have no real bearing. It is as if they took a highlighter to millions of pages of random text and selected the words that make their case best then triumphantly declared themselves masters of the Universe. Ouija-boards are more honest.
Scholars such as Lessig and philosophers like Stallman have looked at intent come to the very reasonable conclusion that verbatim, personal copy should always be allowed because it maximizes the advancement of the state of the arts. The language of the Constitution is as plain and Copyright is a created right we no longer need.
The Constitution can only be ignored by confusing people with frauds like "intellectual property." The most obvious madness is the DMCA's attack on free speech by turning trade secret into to a kind of perpetual patent in the name of copyright defense. By confusing the purpose of each of these separate things, the copyright warriors have combined their powers into something no reasonable person would agree with. When created rights trump natural rights, you know the laws are out of balance.
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Re:Judges and Common Sense. (Score:4, Interesting)
Between free nerdcore and free mashup albums (specifically the Best of Bootie series that pretty neatly fall into the fair use category) and free podcasts and on and on, there's more legal and free audio online than one could ever listen to in a lifetime. Copyright might not be necessary in the field of music to promote the progress of the arts.
The only problem is that I can't see specific genres of music (namely, "classical") carrying on without copyright, as it takes a high level of skill to produce these works of art (debate all you want with me, but for me, free music online pales in comparison to something like Rhapsody in Blue or Tristan und Isolde. And I'm not willing to sacrifice opera and other great "proficient" works, I don't think.
I'm also not so sure about literature and movies, and I'm definitely not sure about news. I mean, can you imagine if anyone could just make a website called RippingOffTheNYT.com and just mirrored the site but with their own branding and ads (assuming the NYT was subscription-based and not free-for-all)?
In any case, this line of thought is very unexplored for me, but I've been toying around with the implications of excluding musical works from 17 USC for a bit.
Thoughts?
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Re:The future is hard to imagine. (Score:4, Interesting)
Without copyright, the NYT would have one subscriber: an admin of RipOffTheNYT.com. Everyone else would eschew paying for the NYT and get the exact same content for free from RipOffTheNYT.com.
Don't forget that the NYT and other investigative journalism organizations need to exist for places like Slashdot to exist. Slashdot doesn't investigate; it refers and contains discussion.
Speaking of which, couldn't the NYT just kill if it could get a critical mass of users to behave in a Slashdot way--their business model could be "come for the news, stay for the discussion." And if you had to subscribe in order to comment, they could ensure a relatively high level of discussion. Imagine Slashdot for people with Slashdot-comparable expertise in foreign affairs, or national politics rather than just tech (of course members of Slashdot know more than tech, but, e.g., not a substantial number of users are well-versed in the law--hence "IANAL, but") and with a mod system. I would pay (assuming I had a job) to participate in that sort of discussion on such far-reaching issues.
And subscriptions could be cancelled if people were flamers, thus ensuring good discussion.
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Re: (Score:3, Informative)
Re:There is no 'I told you so' more poignent (Score:5, Interesting)
On another note (and this idea is not original to me, but I cannot remember now where I read it), the idea has been advanced that since in many ways we are now treating "intellectual property" in the same manner as real property, we should treat it as real property in another aspect as well -- taxation. I am taxed on the value of my house and the land on which it is built. Well and good. If this so-called "intellectual property" is indeed so very, very valuable, then it should be taxed at a rate commensurate with the value assigned. Anything else would be, to my mind, grossly unfair to the the rest of the citizenry. How much would you care to bet that, subject to taxation, the copyrights to, say, "Gone with the Wind", "Bambi", "Mickey Mouse", etc. would suddenly be allowed to expire?
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Re:There is no 'I told you so' more poignent (Score:4, Funny)
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That's a long summary (Score:5, Funny)
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Ad hominem ? (Score:5, Insightful)
Re:Ad hominem ? (Score:5, Interesting)
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Re:Ad hominem ? (Score:5, Insightful)
Prof. Hansen, the moderator, starts the meeting with a reading of a "paper with an overview of the law" by Michael Schlesinger, which unfortunately is not yet included in the transcript, but apparently presented arguments in favor of the theory that a grant of exclusive right to "making available" exists in US copyright law. After presenting one side of the debate, he askes the panel to reach a conclusion:
He then invites NYCL to represent the minority opinion after setting the stage that a reasonable conclusion had already been reached. I think maybe he was a bit embarrassed when the fallicy of his meaningless "show of hands" and arrogance of his interpretation of the significance of it's result was pointed out:
To which he responds:
Now I'm not sure what Prof. Hansen means here, as it's not well-stated. "You reject the idea that the intellectual elite
In that context, NYCL's response was absolutely appropriate:
To which Prof. Hansen retorted:
I see nothing ad hominem at all in NYCL's remarks. Prof. Hansen had just suggested that the "intellectual elite", who were "fairly represented here", held the "correct" opinion on the interpretation of US law, as evidenced by his "show of hands" from among those very "intellectual elite" -- case closed, move on to the penalty phase. NYCL pointed out that these matters are decided according to written law enacted through Constitutional means, rather than by a "show of hands" from among a group of "lawyers who are best paid by large content owners". Prof. Hansen, rather than counter the logic of NYCL's argument on the merits, instead accuses him of an ad hominem attack, and tries to justify his accusation by saying NYCL is "desparate" because he's "got a losing argument" (apparently according to the oh-so authoritative "show of hands").
One wonders on what "merit" rests Prof. Hansen's opinion that NYCL's citing of Constitutional priciples represents a "desparate", "losing argument" lacking "merit"? Which "merits" would he have NYCL "just stick to" instead, the "merits" of the result of a "show of hands" among "the elite"?
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Mod parent up. (Score:4, Interesting)
From the transcript, if Hansen considers himself a member of the intellectual elite and still resorts to that sort of reasoning and argument, then I must be a super genius
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Consent of the governed. (Score:3, Insightful)
We are a nation of laws created with the consent of the governed. There are limits to what people will put up with no matter how clever Hansen and friends think they are.
Hansen thinks he would like to live in an aristocracy but he is sadly mistaken. He and his friends in the room feel good about their position in the world today but the more power they gain, the smaller the room will become. Aristocracy quickly becomes autocracy and autocrats have little need for lawyers [wikipedia.org] once they are established. It star
Re:Ad hominem ? (Score:5, Funny)
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Ms. Thomas had 100Mbps feed to the Internet? (Score:5, Insightful)
On my ADSL service (1.5Mbps download/256kbps upload), it would take me over 37 YEARS to upload that much data assuming I used it for nothing else, and the service had 100% uptime! Heck even if I got ADSL2+, uploads would still only be 4 times faster - bringing it down to just under 10 years to do that kind of an upload.
I guess I really do live in an Internet backwater...
Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Interesting)
And, even bring in your uTorrent config files. Mine is set to upload 2X and then stop. At most, I'd be liable for distributing 2 files.
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Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:5, Interesting)
My Grandparent's attorney simply asked how many rows of corn were affected, how many plants per row. He did the math and came up that the neighbor was claiming up to 200 pounds of corn per stalk. Needless to say, the judge threw the case out.
Courts don't appreciate someone lying or exaggerating to make their case. Guess he could have argued that the animals couldn't have consumed that much corn in x amount of time too (if the time line were known)
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Re: (Score:3, Insightful)
It goes to show how easily an education can be politically tainted.
Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Insightful)
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Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Insightful)
Were I running bittorrent, and transferred a 1K chunk to 10 million people, one might could argue that I've infringed 10 million times.
Of course, I'm too lazy to check whether that theory is at all applicable to Jammie Thomas's case.
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Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Funny)
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Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
However, vicarious liability requires that the 3d party (the original uploader) have a financial interest in the infringement. This is clearly not true in the case of P2P, as no one has a financial interest. You'd have to make an extremely tenuous argument that by others infringing the song
Making Available (Score:5, Insightful)
Or, to put it another way, If I have something, and anyone who sees it can steal it, claiming I have "made it available" how many cars would not be stolen in New York?
Perhaps someone should ask the RIAA this question.
Re: (Score:3, Informative)
It's not an interesting question because the issue of "making available" is different when applied to IP, which can be copied endlessly without cost and copies of which do not necessarily dilute its value, than when applied to physical goods, which when taken deprive someone of something (namely, the goods.)
Re:Making Available (Score:4, Interesting)
Haha! There's no such thing! How about: the market (invisible hand) has properly determined the fair value of your creation (.mp3 file) to be so close to worthless that everyone is giving it away for free---and is properly compensating you with something equally worthless---such as name recognition and popularity (which you may apply to make money in other ways, such as sell tickets to live concerts, endorse products, etc.).
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Normally I skip self-submissions... (Score:3, Funny)
Couldn't NYCL have gotten a sock puppet to post this to soothe my feelings about conflict of interest? I keep hearing about a guy named twitter....
Bad link (Score:3, Informative)
Re:Bad link (Score:4, Informative)
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after all is said and done... (Score:3, Insightful)
the victims of these law suits will file a class action and reap what the RIAA has sowed.
These guys don't even know what they are debating (Score:4, Interesting)
[Show of hands]
PROF. GINSBURG: Absent the applicable exceptions. At least prima facie.
PROF. HANSEN: Prima facie. A good point. Thank you.
How many would say no?
[Show of hands]
Significantly fewer.
Re:Good Grief! (Score:5, Insightful)
The rest of us have no problem.
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Re: (Score:3, Funny)
Re: (Score:3, Funny)
Is it just me or does this conjure memories of <every-film-you've-seen-involving-an-exorcism>, where the malignant spirit is mocking the priest as he attempts the exorcism ?
Re:Who are these people? (Score:4, Funny)
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Re: (Score:3, Interesting)
Was that the transcript of the entire discussion? It seems a bit odd to me that the organizers would go to the trouble of assembling the panel and an audience including some foreign lawyers only to have what appeared to be a brief twenty (20) minute discussion and then take no questions at the end. Perhaps Professor Hansen didn't like how the discussion was unfolding and cut it short so that he wouldn't lose the debate. Isn't it a bit unusual and irregular for the moderator to take a position up front anyway? What ever happened to the impartial and unbiased moderator concept?
The panel was scheduled for 30 minutes. It probably ran a bit shorter than that. Yes it is unusual, when in the moderator role, to "take a position up front" like that. I'd never seen that before. My constructive advice to Hugh -- who doesn't need my advice -- would be to chill on the partisanship next time. He's a very funny guy, so maybe he thinks it's more entertaining this way.
Re: (Score:3, Interesting)
Re:What? (Score:5, Funny)
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Re:What? (Score:4, Insightful)
Dance for me, monkey!
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Re:What? (Score:5, Insightful)
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Re:What? (Score:4, Insightful)
And for a good 100+ years or so it worked beautifully. If the trade agreement hadn't been broken by the cartels you and I could listen to Hendrix,Joplin,Classic Stones,etc all for free. And artists would be free to take that music and reinterpret in new and exciting ways. But you see Mr. Coward,a trade agreement ceases to be a trade agreement when one side doesn't get anything in return.It would be like me offering you a free car dealership in return for the rights to all the older models traded in,only when I go to collect you kick me in the nuts and have me arrested for daring to step on "your" property. But you see Mr. Coward,it isn't your property because you didn't live up to the agreement. So YOU are a thief. Just as the RIAA has stolen from us all by robbing us of our public domain so that they can profit for eternity.
So while I haven't heard anything from the RIAA "artists" that I would actually listen to if you paid me,I would have no problem with someone else downloading their music. Because THEY broke the agreement and until a new agreement is reached that is fair and equitable to both sides I say they can go piss up a rope. But of course this is my 02c(released into the public domain),YMMV.
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Re: (Score:3, Interesting)
They don't seem to grasp the nuances of the issue, can't spell (even her name) properly, and generally seem like a perfect example of what social promotion and television have done to western societies.
These types will be the first ones who bow down and welcome the completion of the convergence of corporate behemoths and corrupt governments into the coming fascistic nightmare.
They speak of "the law" and seem to have disdain
Re:Don't forget ... (Score:5, Funny)
PAY YOUR $699 LICENSE FEE, YOU COCK-SMOKING TEABAGGERS!
I'm sorry, but I'm afraid your failure to correctly post even a simple classic troll simply doesn't measure up to the high standards we have here at slashdot. You see, unlike at digg or fark, we here at slashdot have a rich tradition of truly great trolling, and because of this we attract only the best and brightest of the trolling community. Our trolls gone on to lead very rich and lucrative careers in exciting and rewarding fields such as shills for Microsoft and Comcast management. Who do you think came up with the whole "make available" scheme the RIAA uses? That's right, a former slashdot troll!
So please, in the future put more care and thought into your trolling. Remember that you are walking the path blazed by such luminaries as the GNAA and that you stand beside such greats as the shit eater troll and the ASCII goatse guy. So in the future try to remember the greats that came before you along with your trolling peers and live up to their high standards. Thank you for your time and may you have a successful career trolling here at slashdot!
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