Listen to the RIAA's Appeal In Jammie Thomas Case 225
NewYorkCountryLawyer writes "The RIAA doesn't really like free mp3 files floating around but here's one you can access legally — the audio file of the June 12, 2012 oral argument of the RIAA's appeal in Capitol Records v. Jammie Thomas-Rasset. At issue in this case are (a) the RIAA's 'making available' theory and (b) the constitutionality of large statutory damages awards for download of an mp3 song file. The lower court rejected the making available theory, and reduced the jury's verdict to what the judge considered the maximum possible award of $2250 per file. I'm predicting the Court will affirm. After listening to the oral argument, what do you think?"
What do we think? We don't know! (Score:5, Insightful)
You're the lawyer; You tell us!
Re:What do we think? We don't know! (Score:5, Insightful)
Its one more nail in the coffin of an outdated model that serves as an example of a few industries that have failed miserably to embrace new technology and god forbid adapt to changing circumstances, and instead are abusing the courts to keep an outdated methodology in place, massively stifling innovation in the process.
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What massive innovation has the RIAA stifled?
I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee. It will come with album artwork and maybe even lyrics. My phone can hold many thousands of these songs, play them back in any order either by playlists I've arranged or based on metadata embedded in the song.
Also available are services that, in return for blitting ads to my screen, will c
Re:What do we think? We don't know! (Score:5, Insightful)
you think the RIAA made music-at-our-finger-tips possible?
you are a schmuck.
you know what made it possible? consumers.
consumers that said "fuck your model"
the music industry only begrudgingly made changes.
it's taken decades.
we don't need the RIAA or the industry, they need us.
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So why didn't we had that already in 1994 for instance? When amazon.com opened and all the other online shops started? Why did it take until 2003? The technology to compress a music stream was there, MPEG-1 Audio Layer 3 was standardized in 1992. How to download a file was wellknown in 1994, and how to handle payments too (see amazon.com).
So where does the 9 years of postponing come from? People not being able to code online shops?
Re:What do we think? We don't know! (Score:4, Informative)
In 1994 it wasn't feasible because of space restrictions on computers and players, and to a degree, download speeds.
Re:What do we think? We don't know! (Score:4, Insightful)
And CPU. Remember when we graduated from MP2 to MP3? I needed a new computer just to play them!
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You are sort'a right. But not really.
I still have around somewhere the first CD-Rs from around 1996-1998 filled with the MP3s of the music which was literally impossible to buy at the times. CD-R were rather expensive - but it was worth it. Cheap harddrives were already 2-4GB in size. For some of my friends, fans of death metal, the warez channels (P2P wasn't yet widespread enough) were pretty much only way to acquire some of the music (at good quality). Some of the world music and classical performanc
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No, we were already using MP3 to burn them to CD in 1994, because thus you could easily get the contents of 10-12 Audio CDs onto a single CD-RW. So space was not an issue. A 2-GByte-HD was able to take the contents of 30 CDs, which was completely ok at the time.
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There's only one problem with that argument: Napster.
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> How is a service that started in 1999 relevant to 1994?
That which was debatable in 1994 was undeniable in 1999.
The market was ready.
The technology was ready.
The industry fought against the future tooth and nail just like they always have. They are an entrenched oligopoly. They have no self-interest in innovating. They guard the gates and take a large vig.
Many of us could claim that the market and technology were ready earlier. Rather than being mired in an argument about who has the better memory, a bo
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Re:What do we think? We don't know! (Score:5, Insightful)
Hate to jump on this war, but wow... you are so wrong! The historical stifling is hopefully something that no reasonable person can deny-- the attacks that the RIAA made on Mix-Rip-Burn, the adherence to the album model long after it was dead, and killing sites that made it possible for people to discover music and become music consumers again.
Even today, the RIAA doesn't like the model that is out there-- they really want to push a limited catalog of super-hits, and generate ongoing revenue from their back catalog that has been purchased over and over again based solely on the need to media shift. They also are responsible in a large part for the complexity in international music sales, the challenges of internet radio, Pandora, and the like. They serve to promote formulaic music that is most likely to be successful.
While I can't speak for everyone here, the real problem isn't just the RIAA, but the MPAA and whatever the comparable association is for television. Copyright extension to its current level is one of the biggest problems, but their push for additional revenue streams is even worse. All three associations need to regroup (RIAA has come the farthest) and re-align themselves to the brave new world.
(And yes, I realize the RIAA does not do anything, they are simply a trade group for the labels. The transgressions of the labels and RIAA are much more easily lumped under a single umbrella.)
Re:What do we think? We don't know! (Score:5, Insightful)
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Re:What do we think? We don't know! (Score:4, Informative)
They tried to sue mp3 players out of existence. Rio anyone? Remember MP3.com? Remember their digital locker attempt and RIAA claiming the world would end over it? Who DIDN'T they sue? Even Apple was a target but managed to force it down their throats with iTunes.
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I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee.
Do you know why you can do that? I'll give you a hint, it ain't cos of the RIAA.
Re:What do we think? We don't know! (Score:5, Informative)
> What massive innovation has the RIAA stifled?
The very one you gush over. RIAA fought it tooth and nail. Even when they relented a tiny bit, they still installed Apple as a new monopoly.
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What massive innovation has the RIAA stifled?
Think about how easy it is to share photos and albums with your friends and family.
Now why isn't it just as easy to share music? Try to share a music track or a playlist from your phone.
Generally speaking, text, images, and video (copyrighted or not) are easily shareable via social software. But audio, not so much.
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That's right, keep attacking the messenger instead of the message.
This is the internet, not a college term paper. On the internet, we overlook minor typos, misspellings, awkward sentence structure, and Anonymous Cowards.
Re:What do we think? We don't know! (Score:5, Insightful)
You must be new here.
Moderating is not a job. Its a randomly handed out optional task to normal users.
Unfortunately a significant number of these volunteer moderators use it as a Disagree/Agree scale rather than
pay any attention to the content or reasoning in the post.
As to your arrogance of commenting on the IQ of an entire community based on the graffiti of the few, I'm not sure it does much to further the discussion, but it probably allows you to thump your chest a bit and feel all smug. Congratulations: You've "Won the Internet".
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The more relevant question is why would want to buy it on a phone?
Sure. Load it up at home. Although you also need to be easily get it back off again. The way tech has progressed, a phone makes a handy portable hard drive.
You can carry around ANYTHING, not just music.
Although this only works if your phone vendor allows it.
Re:What do we think? We don't know! (Score:5, Interesting)
And on the other hand is hyperbole and backwards Pirate accounting, where a song which was once played on the radio back in the 40's could conceivably have been recorded - legally, for free - by their grandfather onto a wire recorder and passed down through the generations having been transferred to more modern media and replaced with higher quality recordings (after all, one should be entitled to the same piece of music even if it's not the exact same recording) along the way ending with them.
At which point they made it available to 1,000 'friends' whose grandfathers could also just as easily have recorded it back in the 40's and thus, logically, have every right to that same piece of music.
It also does not only extend as far back as the 40's - any newly released song is played on radio, released on youtube, etc. so the arguments work just as well for those.
Which, coincidentally, makes the monetary worth of that music $0, thus there being no monetary damages and no basis for a court case at all.
Moreover, by exposing people to this music they share, those people may be more inclined to listen to more of that music and actually buy them at iTunes, buy the physical albums, go to concerts and purchase t-shirts and other swag.
Really, by some Pirates' logic, the RIAA should be paying them.
I don't really see either extreme being particularly realistic. Unfortunately, the two 'sides' are not likely to come to an agreement any time soon.
How about this one (Score:4, Insightful)
Artificial scarcity is morally wrong and economically harmful.
Business models that involve data should not be dependent on artificial scarcity.
We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).
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Artificial scarcity is morally wrong and economically harmful.
That's what I said to a girl who turned out not to be on the game
Re:How about this one (Score:4, Interesting)
Artificial scarcity is morally wrong and economically harmful.
Business models that involve data should not be dependent on artificial scarcity.
We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).
You have to ask yourself if the scarcity is in fact artificial.
There is only one Lady Gaga, and she can't be everywhere at once, and she is therefore by definition scarce.
Recording and mass marketing has made her un-scarce. She chose this route. She did so in order to maximize her
profit, with the expectation that she might make some money. Not an unreasonable expectation.
When there were records (vinyl), artists and labels could press a short run, label them a collector's edition if they wanted, and
controlled the number in production. Same for books. That too was a artificial scarcity of sorts.
So was the 1937 Bugatti Type 57S Atalante Coupe, 17 made. They could have made any number.
Others could have copied the car, or the books or the records. But we, as a society, gave that right
to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not
germane, we did it, enshrined it in law, and it is what it is.
Digital music / ebooks / videos removed all capability for the artist to control the number of copies, and allows
anyone, at will, to create any number of copies.
You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.
Ford could have copied Bugatti. But the barriers to entry were high enough (an automotive assembly plant) to prevent that.
Someone could have pressed a copy of the Beach Boys albums, or any best selling book. Again you had to have the
expensive tools and you would risk getting caught with a warehouse full of counterfeit goods.
The computer removes all of that, and gives any 12 year old the ability to make perfect copies at zero cost.
Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?
Will 3D printing do the same for physical objects?
The concept of artificial scarcity is, itself, artificial: man made.
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That you hate the idea, means nothing. Its still the law that society has adopted.
If you don't like that, then work to change the law, so that any work, once created, belongs to all.
Oh, and go ahead and forward half your bank account to me. Thanks. And keep up the hard work.
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This is entirely false. The argument for copyright is (and always has been) that creators get to control their works. Sometimes that means selling copies. Sometimes that means saying 'you can not use my music in your commercial'. Sometimes that means saying 'you may not distribute binaries of this software without distributing the source'. Sometimes it means saying 'this is my gift to the world, do what you want with it'.
What does the ease of infringement have to do with anything? There are lots of th
Re:What do we think? We don't know! (Score:5, Interesting)
If I were a judge, this is what I would do.
Go out, find what the commonly available price of purchase is for all the infringed songs. Don't bother trying to find "the best deal" or doing some big, exhaustive research on average prices. Just go out to Wal-Mart or go on iTunes, look up all the songs, see what it would cost.
Move the decimal point over one place. If they stole one album ($14.99), their liability is $149.90. If they stole $100 worth of music, they owe $1000. If they're a repeat offender, move it over an additional place (ie. if this you've been in court for it before, that one album is now $1,499).
If the defendant actively distributed it (not just "seeded their torrent", but actually posted it on new sites or made their own torrent or whatever), they're liable for both side's legal fees. Otherwise, each pays their own.
Same applies to any other Intellectual Property. Steal a $60 video game? Pay them $600. Steal a $20 movie? Pay $200.
The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate. And the legal fees will make the MAFIAA go after the actual "distributors", not people who just download a few episodes of whatever TV show is popular right now. Economically, the only ones worth it are the distributors (because as long as you win, you have no costs), and the massive steal-every-song-made-in-the-past-century pirates who still rack up millions in damages, not the "I'm gonna give this song a listen before I buy it" crowd or the "piracy is *still* easier than buying" crowd.
Re:What do we think? We don't know! (Score:4, Insightful)
Re:What do we think? We don't know! (Score:4, Interesting)
The amount isn't based on what they "stole", it is based on what they supplied to others. The RIAA argues that if you upload a song on a P2P network it can potentially go to thousands of people. They want to be paid for all of those potential "thefts", hence the massive multiplier.
It seems odd they can be awarded for losses they can't prove.
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The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate.
Not really. Its still cheaper to pirate. Price ZERO is still cheaper than price 99cents.
The receiver (the downloader) pays nothing now, and nothing under your plan. They received a "gift". Its virtually
impossible to catch them as long as they avoid bit torrent re-seeding.
The supplier (the uploader or pirate server) pays nothing now, and maybe a few hundred dollars under your plan.
Even if you catch the uploader in the act, they are not going to tell you how many people they uploaded to. They will say
I o
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Do you have trouble with computer?
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Personally I don't have trouble with computers - though I do have trouble understanding how that even factors into this discussion.
The unrealistic aspect of "a string of bytes having a value of $0" lies in what that string of bytes constitutes.
Presume for a moment that the string of bytes is, in fact, the original studio recording before it goes to any CD pressing outfit. (ignoring the CD mastering people, etc. for a moment here).
The value of that string of bytes is then rather high. You can say that "well
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Bottled water is a fairly poor example, though.
Bottled water is highly popular in the U.S., as far as I've been able to tell, because of a few reasons:
1. It tastes better. Tap water in the U.S. is often chlorinated (yuck) or mixed with lord knows what but it makes me wonder if it's even suitable to be showering in.
2. It's usually available chilled. Water from any random tap won't be chilled.
3. It comes in a bottle. Yeah, you could carry your own bottle around everywhere, but how inconvenient is that? Ha
Re:What do we think? We don't know! (Score:4, Interesting)
Oh but they CAN bottle music better.
When I go to iTunes/Amazon/etc and download some old Black Sabbath jams, I don't run the risk of having them mislabeled as "Ozzy." They also come with the metadata tags fully filled out, names are all spelled correctly, album art is accurate, and everything else that a music loving person like myself would enjoy. I can download entire albums at the click of a button and have them cataloged, named correctly and set to play in the order originally intended without having to worry if the file of Track 3 contains the first few second of Track 4, making for a messy exchange when listening.
Are these minor things? Well, yeah. They're absolutely minor little nit-picks that probably wouldn't bother the majority of music listeners, when compared with the allure of "free." But then again, bottled water tasting a bit better is a minor thing too, and it certainly hasn't stopped that from catching on. And for me, the conveniences I've mentioned here are WORTH $0.99 per song. I'd rather spend the dollar than go through and fix all that crap myself (because I will be fixing all that crap if I torrent)
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Make it so easy that I wont bother pirating.
Steam did this to me... I used to pirate every single game...
Now I have a handful of pirated games left, mostly because they're actually hard to buy now due to age :p
80+ games in my steam list now... scary.
Every time I see one of those "Get all the games from X publisher 70% cheaper!" I go 'squeee' and end up blowing 30-50 euro on the pack if it has a few games I used to like or have played in the past. Especially if they are multiplayer so that I can have everyth
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What a bunch of bull. Bottled water is several orders of magnitude more expensive than tap water, has in some studies been frequently detected to contain MORE contaminants than tap water (including bacteria), and causes an enormous increase of pollution not just because of the plastic bottles, but because most of it has to be transported significant distance.
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I'm not sure which part you're trying to call out as 'bull' per se.
For the record, I agree with you. I actually do bring my own bottle when possible and when I do want something to drink somewhere else, I'll actually buy that fruit juice tyvm.
But I'm pretty sure none of what you mention has any bearing on why bottled water is popular, which is what the comment was about.
Despite being more contaminated, for example, it still tastes better than chlorinated water. Yes, if you have a Brita filter or just let
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You listed a lot of benefits of bottled water.
Did you know that bottled water is 95% of the time bottled tap water? (there are very few brands that are genuine untreated spring water, most that claim spring water are less than 10% spring water or the spring being counted is feeding the tap water) Often from the scummiest and oldest drinking system in the city that serves the industrial area where the water was bottled is the water in your bottled water. The most popular and cheapest brands are bottled tap w
Re:What do we think? We don't know! (Score:5, Interesting)
A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.
You're the lawyer; You tell us!
Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?
That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.
*Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands. ;)
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Though most don't provide anything like as many copies as a store.
the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.
As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who
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Though most don't provide anything like as many copies as a store.
Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.
the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.
As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.
Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw i
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That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position. The upload she provided is cancelled out by the one she consumed and in net there is only one extra copy which she could have been bought for $1. If there's 100 people in a swarm there's 100 copies and each person caused 1/100th of that which is 1 co
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That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position.
So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
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I guess their argument was something along these lines...
If you are the only person with a particular track, and one person downloads from you, you have uploaded 1 copy.
Now there's two people with that track.
A third person downloads, but of course ends up downloading from both of you. Making the assumption (since there's so many assumptions in this argument already) that there's an equal distribution, then you just uploaded 1.5 copy and the 2nd person uploaded 0.5 copy. The net result is that there is sti
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But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.
Agreed, though I believe his argument was that if there are 20,000 complete downloads of a particular track, there must have been 20,000 complete uploads (split across any number, as you note), so therefore it's an average of 1:1. It has the flaw you note, and an additional one: it assumes no leechers. If 10,000 people leeched, then the ratio suddenly becomes at least2:1 for the seeders, averaged out. Even a single leecher puts the average above 1:1.
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So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available. Hence the "making available = distribution" issue, which was dropped. I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.
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So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.
Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
Hence the "making available = distribution" issue, which was dropped.
Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.
I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.
Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it cons
Re:What do we think? We don't know! (Score:4, Insightful)
Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
What about contributory infringement? If the only proof of an upload was induced by an agent working on behalf of the copyright owner, is that really infringement?
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No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.
Ah, but we have reliable data. MediaSentry downloaded files from Thomas. Thus, there's no need to rely on an "average" assumption.
Plus, your average assumption is averaged across both seeders and leechers. Therefore, by definition, it's not an average of typical distributors. Accordingly, it's not even reliable data for the proposition you're advancing - that a typical distributor only distributes once. In fact, since leechers exist, it means that the average upload/download ratio for distributors must be
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That's not reliable data.
On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".
MediaSentry doesn't count and self serving assumptions aren't good enough.
The RIAA is supposed to be proving something.
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"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,
That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.
But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with
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"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,
That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.
... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.
Does this make more sense now? Apple sells $19 billion songs, so they'd pay $8.3 billion in royalties.
But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.
In the case of the Sun, the re
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Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."?
Yes, but if a burger store made a joke a sold one single dollar meal calling it a McDonald's meal, McDonald's couldn't argue that because the only way to legally serve a McD burger is to pay a $15k franchise fee, their actual damages from lost sales is $15001 (they could possibly argue loss of reputation though). Any sane judge would reason that this customer would then likely have gone to a real McD and paid $1, which is the only actual loss.
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How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !
Since she doesn't have an established track record in the industry, they'd probably set a minimum, as I suggested. So yes, make Thomas pay $15k for each of the songs she wanted to distribute as an advance on that 33% of her gross sales.
Re: (Score:2)
Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's th
Re:What do we think? We don't know! (Score:5, Funny)
You're the lawyer; You tell us!
I've never before experienced such humility on Slashdot. You must be new here.
100s of downloads are improbable (Score:5, Interesting)
One number that no one seems to have argued about much is the number of downloads that could have come from one user's computer. This is the basis for the entire idea of multiplying the damages to levels we all know are ludicrous. The RIAA insists hundreds of people could have downloaded from Jammie Thomas. Although that's possible, it's highly improbable. The most likely number of downloads is 1 per file. That's one, not hundreds or thousands. The court ought to use that number to compute damages.
Why only 1? For the same reasons that Ponzi schemes do not work. The network quickly becomes saturated. Suppose people can give out copies at more or less the same rate, to anyone else. And once a copy is received, the recipient can quickly turn around and share it. (BitTorrent is even better than that, starting the sharing of parts of a copy before a recipient has received the entire file.) Each generation, the number of people who could have a copy doubles. By the time a person is giving out a copy for the 20th time, 1 million people could have a copy. By the 33rd time, everyone in the world could have it. Even if everyone in the world wants a copy, only one person, the originator, could have given out as many as 33 copies, and only the first recipient could have given out as many as 32. Just 8000 people could have given out 20 copies, and just 1 of every 2000 people could have given out 10 copies. Half the people will have given out zero copies, because by the time they got it, there was no one left who still didn't have a copy of their own. The average number of copies of 1 file that a person gives out is 1.
Re:What do we think? We don't know! (Score:5, Insightful)
Claiming losses on sales that never happened in the first place is like this.
Say littering gets you a $100 fine. Say if you spent all day littering in front of a police station, you could rack up $5000 in fines. This means if you don't litter, it's like saving $5000/day, which means people who don't litter at all are "saving" more than $1.8mil/year. They're all rich!
Re:What do we think? We don't know! (Score:5, Insightful)
when a dinosaur dies (Score:5, Informative)
it's tail thrashes around a lot, and does a lot of damage
it's still going to be extinct very soon nevertheless
you can't foist a business model from a dead era on us
well you can try, and drain all of your coffers in the process, thereby speeding up your demise
but economic reality has a way of being economic reality despite your protestations
they call things like the Internet "disruptive technology" for a reason
consider yourself permanently disrupted, media conglomerates
Re: (Score:2, Funny)
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He flagellates the neighborhood
Smoothly to the ground.
Burma Shave!
Wait... what? (Score:4, Funny)
When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage
That statement got me really curious.
Apropos of nothing, just how is it that you come to know what happens when a dinosaur dies?
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oh shit... i let that slip
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When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage
That statement got me really curious. ...just how is it that you come to know what happens when a dinosaur dies?
+5 Funny. Too bad I'm not a moderator.
Re: (Score:2)
That was before they destroyed Napster, a
Speaking of dead dinosaurs (Score:2)
Prehistoric music industry Three feet in la brea tar Extinction never felt so good
If you think anyone would feel badly You are sadly, mistaken The time has come for evolution Fuck collusion, kill the five
Whatever happened to the handshake? Whatever happened to deals no-one would break? What happened to integrity? It's still there it always was For playing music just because A mil
Can't be serious (Score:2)
In ten years the Internet as we knew and took for granted will be dead as a doornail.* It will not stand a chance against the most destructive 'technology' of all: multinational corporate greed machines and their political whores, so willing to please.
* And all the talk of mythical 'dark nets' being our saviour is beyond polliannish. Even if possible, it will be along the lines of a distributed but tiny Sneakernet.
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that's awesome, that you are so addled by fear that you accept these bogeymen as reality
you'll excuse the rest of us who don't just lie down and get raped when someone tries to rape us
if that is how you handle reality, good for you. the rest of us aren't so meek and cowed as you to simple menace
your words speak of a slave's mentality
fight for what is right, or shut up and fuck off
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no media ever really dies
there's still AM radio, they still sell player piano rolls, cassette tapes, etc.
"dies" means "ceases to be the most important driver of creation and consumption of media"
which has already happened, socially and culturally. financial and political death are what we are still waiting on. give it a decade or two for the older clueless folks to die off
Thomas' argument shoots herself in the foot (Score:5, Insightful)
Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.
Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.
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Thomas' attorney K.A.D. Camara is something of a legal gadfly. The guy is 28 years old, doesn't have lots of experience as a practicing attorney, and took the case on pro bono for the publicity. Camara experienced some bad publicity at Harvard Law School when he uploaded legal outlines that contained a racial slur to a student-run sharing website, so he probably wanted some better publicity. He waived the making available theory, I think, in an attempt to get a shot at the Supreme Court hearing about the co
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And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution. That issue is on appeal, and Thomas has decided not to argue it, instead saying that the Appeals court should refuse to consider it, and decide that it's moot in view of her waiver.
The problem is, it's still an issue as it relates to the Constitutionality of damages. So now, the judges have one side arguing that it should be distribution, and the other side providing no argument whatsoever. That's not a great strategy.
Re: (Score:3)
And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution.
Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.
Comment removed (Score:5, Interesting)
Re: (Score:2)
If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines
These aren't fines. These are compensatory damages. And for better or for worse, that's how the courts have been responding to the argument that the statutory damages range is cruel and unusual punishment. The precedents that Thomas is citing all have to do with punishment and punitive damages, but they simply don't apply to this statute... except with regards to willful infringement increasing the range, but Thomas isn't arguing against the willfulness part of the range. In fact, her reply brief explicitly
On the "making available theory"... (Score:2)
The problem, I think, with this is that they are trying to directly equate the concept of making something available to doing something wrong.
Instead, I think, they need to take a different route, and look at the facts.... and the law how it *REALLY* applies, not how they think it ought to.
Making something available would, by any sense of reasoning, negate any possible notion of private use.
If nonprivate use is not applicable under the circumstances (for example, the copy being used privately was una
Typo in the above says opposite of what I meant. (Score:2)
when riaa lobbyist manipulate the laws (Score:2)
I'll wait for the transcript (Score:2)
Same as when someone posts a link to a video. I don't think anything yet, because non-text media requires a shitload more time and patience. . 60 seconds of audio (optionally with video, don't matter) = 6 seconds of text.
This is supposed to be an argument, not art. Please don't tell me the whole point is that the guy has a funny voice or something like that.
Still way too much (Score:2)
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What I think? $2250 per file is still WAY too much
I agree. The actual out of pocket damages are around 5 cents per unauthorized download. $10 for a 99-cent download would be enough.
"Holistic"? Give me a break (Score:3)
My favorite moment in the argument was when the judge asked the RIAA's lawyer (Paul Clement) whether he agreed that the statute requires, for distribution, that there be a sale or other transfer of ownership, or a license, rental, or lending. And Clement asked the judge not to rely on the words of the statute, but to read the statute 'holistically'.
I never knew the RIAA was so holistic. Maybe next they'll be wearing beads and tie-dyed t-shirts.
Re: (Score:2)
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You forgot to give your insightful predictions on the appeals court decisions even though you didn't RTFA
Re: (Score:2, Funny)
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Was this the one where the defendant through their family under the bus or the one where the defendant's lawyer was a moron and pissed off the judge?
RIAA did a great job at picking people to actually take to court.
Family one. Though, interestingly enough, Thomas' lawyer, Kiwi Camera, was a student of Tenenbaum's lawyer, Charles Neeson. The two have a long and storied history [wikipedia.org] - Camera famously posted his law school outlines online, said outlines containing tons of racial epithets. When the Harvard Law student body was outraged, then-Professor Neeson held a "mock trial" defending Camera on 1st Amendment grounds... which led to Neeson resigning from teaching the class.
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I don't know about the rest of you, but I can read a hell of a lot faster than most people can talk.
Agreed. I spent an hour listening to that file. If I'd had a transcript I could have read it in 10 minutes.
Transcript of first 10 mins (Score:3)
NOTE: This is not the official transcript (if one does exist - I couldn't find it - please do link to it and mod this down), and is only of roughly the first 10 minutes. The rest is also very interesting but I suggest downloading the mp3 and playing it back at twice the speed (keep the pitch) because it. is. long. And I have no idea who the judges are, I think I heard 3 voices, so there you go.
Also... TIL: Typing remittitur is remarkably easy, and Firefox believes it's not a word.
00:00) RIAA
Good morning,
Re: (Score:2)
Perhaps those were the only ones that anyone knows about.
They took one of the highlighted songs and played it for the jury to gain sympathy. Ironically it was a song old enough that it should have been in the public domain.
Jamie claimed that the P2P thing someone else's doing and that most of the stuff there didn't even reflect her musical tastes. Apparently, it was mostly a lot of relatively obscure Scandanavian Metal bands.
Most of what Jamie was supposed to be sharing is the kind of stuff that the RIAA te
Re:Because you're not quite evil enough (Score:4, Insightful)
In actuality, Jamie Thomas made thousands of songs available. The RIAA only picked a small subset for trial. .... Wonder why they only tried to go for a mere 30 or so?
Think it could it have anything to do with the fact that there's no such thing as "making available" in US copyright law?
Re: (Score:3)
Who owns the copyright to the audio?
Me.
That'll be 99 cents please. You can make payment to my Dwolla account.
1. Tell everybody on Slashdot about a free mp3 file involving an RIAA case
2. ???????????
3. Profit!