NewYorkCountryLawyer Debates RIAA VP 291
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."
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:Good Grief! (Score:5, Insightful)
The rest of us have no problem.
Ad hominem ? (Score:5, Insightful)
Re:First post! (Score:4, Insightful)
The lawyers always win...
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...
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:Ms. Thomas had 100Mbps feed to the Internet? (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)
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.
Re:Ad hominem ? (Score:1, Insightful)
There's probably a term for what Hansen was doing here, too; in any case, as you rightly point out, it was him who was arguing fallaciously here, not NYCL.
Re:First post! (Score:4, Insightful)
Re:What? (Score:4, Insightful)
Dance for me, monkey!
Re:There is no 'I told you so' more poignent (Score:3, Insightful)
Re:What? (Score:5, Insightful)
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.
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"?
Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Insightful)
Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:3, Insightful)
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 starts with the mistaken notion of, "my opinion is more important than yours," and it ends with, "do as I say."
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.
Re:Ms. Thomas had 100Mbps feed to the Internet? (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 that you already infringed upon, they're making the service more popular and therefore increasing the number of other songs you want to download, and therefore that's a financial interest on your part to have others infringe. I think that's a lot of links in the chain considering that the classic case of vicarious infringement is a swap meet owner in which one vendor renting space is bootlegging music and therefore driving traffic to the swap meet, where the swap meet owner makes money on ticket sales at the door.
Contributory infringement would be an easier case than vicarious infringement, but I think it would fail in that giving someone an infringing MP3 is no more contributory to infringement than what Apple does when they sell you a non-DRM audio file that you can turn around and pirate.
Re:What? (Score:3, Insightful)
Re:What? (Score:3, Insightful)
Comment removed (Score:4, Insightful)
Re:What? (Score:3, Insightful)
You're trolling, but I'll make my point anyway. In all of the comments I've seen by NYCL, and in looking at his litigation history I see little to no evidence that he is "anti-RIAA" because he opposes copyright in general. In fact, the litigation history suggests his typical case is one where the RIAA's fishnet has wrongly fingered someone for infringement and the RIAA insists on pressing forward despite having a generally flimsy case.
The impression I get is not one of anti-copyright, but one of anti-abuse of the legal system. There are many of us who support the idea that copyright infringement is wrong, but still abhor the legal practices of the RIAA. It's easy to just say "if you do nothing wrong you won't get sued" but I think there's a certain single mother in Oregon who would argue against that point. I really see no alternative in such situations but a direct confrontation. Perhaps you have a better solution Mr. Anonymous Coward?
As a side note: Perhaps you wouldn't get down-modded as troll if you made a truly insightful post rather than going for cheap ad hominem attacks. If you don't want to be marked as a troll don't sound like one when you post.
Re:What? (Score:3, Insightful)
Re:Judges and Common Sense. (Score:2, Insightful)
Re:Sure, you can't assume, but what is better? (Score:3, Insightful)
1. Follow the Copyright Act.
2. Follow the Federal Rules of Civil Procedure.
3. Follow the US Constitution and make sure that statutory damages are not violative of the Due Process clause.
4. Follow normal, traditional practices of the copyright bar, in seeking to avoid, rather than rushing to precipitate, litigation.
I think that would be "fair", "reasonable", and "practical". Why don't you?
Re:Sure, you can't assume, but what is better? (Score:3, Insightful)
I can't speak for anyone else here, but can tell you why I am "unwilling to answer" your question. Because it is an absurd question. As we lawyers would say, it "assumes facts not in evidence".
You are starting from an assumption that US copyright law is not up to protecting the rights of copyright holders. As someone who has worked with copyright law for almost 35 years, I respectfully disagree.
If you are sincere in that belief, and I have no reason to doubt that you are, you are about the only person I have ever met who sincerely believes such a thing.
There are shills, trolls, flacks, lobbyists, and even attorneys, who work for content holders, who will publicly say such stuff when you press a button, but none of them sincerely believe such claptrap.
All copyright holders have to do is what they have been doing for decades in the US:
-keep an eye open for major violators of their rights,
-enter into cease and desist agreements with those violators, and
-as to those who refuse to enter into cease and desist agreements, if they are engaged in major copyright infringement, commence a lawsuit based upon (a) solid evidence, and (b) the well established law, and (c) follow the normal rules and practices of civil litigation in the federal courts.
The only people who ever tried to make anyone think that ambushing our populace with wholesale lawsuits against minor copyright infringements was an effective business model were the morons in the employ of 4 large record companies and 6 large motion picture companies who had failed to capitalize on one of the greatest business opportunities in the history of the world, the dawning of the digital age, and were now looking to find a scapegoat for their screwup, finding their scapegoats in children, grandparents, stroke victims, homeless people, and other hapless victims of the content cartel's madness. They, and the lawyers who have profiteered by inciting and exploiting this folly.
I am sorry if their propaganda machine has unduly influenced you. And I am sorry to disillusion you. But our copyright law and our court system work just fine, when they are not being abused by a host of well paid liars.