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."
First post! (Score:5, Funny)
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Re:First post! (Score:4, Insightful)
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Sorry!
(Your post is . . . mildly funny . . . for 2:22 AM on Friday night . . . but at least half-way get the law right.)
Re:First post! (Score:4, Insightful)
The lawyers always win...
Re:First post! (Score:5, Funny)
The lawyers always win...
Re:First post! (Score:5, Funny)
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jIH 'oH wa'Dich (Score:2, Funny)
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
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Didn't EMI stop supporting them? If so, them what legal right do they have to sue for EMI copyrights?
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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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OK, so what would be a fair alternative? (Score:2)
What I'd really like to know is what a rational, intelligent person who is interested primarily in courts giving fair verdicts that reflect the spirit of the law would want here.
I can understand the reservations about allowing a "making available" argument: if you can't prove that a specific illegal act has been committed, the idea of bringing a case based only on hypotheticals seems a bit dubious.
On the other hand, copyright is widely infringed on the Internet, contrary to the law, and the law in many
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It's called actually downloading said copyrighted material
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What I'm asking is what people propose as a (fair, reasonable, practical) alternative.
Here's my suggestion:
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?
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Which brings me back to the question I keep asking but no-one seems willing to answer: how are the theoretical protections afforded by US copyright law are worth anything in practice, if we accept that the current dubious legal manoeuvring shouldn't be allowed to continue but don't offer any alternative?
Thank you for disclosing where you are coming from, and why you feel the way you do.
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 tha
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: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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Thankfully, classical .MP3s can be found for download in the public domain [musopen.com] if you know how to phrase your search...
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Probably a clearer way of stating things would be that I'm worried that without copyright, we'd lose performers and composers of the hi
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I'm pulling this completely out of my ass here, but I suspect copyright is mostly irrelevant to most "classical" music modern and otherwise. Modern classical performers/composers still operate very much on a system not unlike patronage. I imagine record sales for any "new" classical music are quite low, the money is in the performance.
My personal example: the LA Philharmonic. When there is a guest performer (especially a big name like Midori) the concert will sell out months in advance, yet you rarely s
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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The language of the Constitution is as plain and Copyright is a created right we no longer need.
With this one statement, you have demonstrated that you completely and unconditionally fail to understand the intent and purpose of copyright.
The purpose of copyright as originally defined, in line with the purpose of the constitution itself, is to protect the weak from the strong. It is easy for a person or entity of means to steal a creative work. And when I say steal, I don't mean copyright infringement, I mean actual deprivation, actual stealing.
Remember
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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 /. was represented (in a way) in that slap to the face.
Slapping them in the face isn't enough.
First, we need to kick them in the groin (because they really deserve it).
Then we need to cut off the head, remove all limbs, and incinerate each piece, scattering the ashes in multiple locations, so the body can never reform.
With the increase in RIAA litigation against college students, I am shocked we're not seeing college radio stations dropping major label releases from their playlists. I'm surprised we don't see a reduction in support for major record labels by c
Re:There is no 'I told you so' more poignent (Score:4, Funny)
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I have to say way to go for NewYorkCountryLawyer to have the balls for telling it like it is to the VP of the RIAA. The fact that an Australian professor also agreed to the statements should have been a wake up call to Kenneth Doroshow that these tactics are ludicrous. However, it probably went in one ear of Dorshow and out the other. Sadly greed and power tend to block things like common sense and intelligence.
My impression was that it did not go in one ear and out the other. My impression is that Mr. Doroshow is well aware of how stupid he and his clients look.... and are. They are professional advocates, and will never back down until their clients call them off. But don't confuse what he says with what he knows, because if he believes what he says then he would have to be stupid; and I do not think he is stupid, far from it. If you look carefully at his 'keynote' address you will see that it almost entirely a
That's a long summary (Score:5, Funny)
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See sig (Score:2)
Ad hominem ? (Score:5, Insightful)
Re:Ad hominem ? (Score:5, Interesting)
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"?
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
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
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What I cannot believe is that this guy was the moderator! I have never heard such comments from an individual charged with the responsibility of being a neutral party. It's just unbelievable and intellectually dishonest!
Maybe he is playing a game, trying
Re:Ad hominem ? (Score:5, Funny)
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.
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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It goes to show how easily an education can be politically tainted.
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It goes to show how easily an education can be politically tainted.
Contrarily, it may just be another indicator that a professional can obtain a high degree of training in his chosen field while preserving the ignorance of his educational virginity.
You can require that med students and law students take certain liberal arts courses, etc, to round out their education. But there is no way you can require the ones who are pathologically focused on their career goals to study the material for its content, rather than studying it to get by the damn tests.
Short version: it
Re:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Insightful)
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:Ms. Thomas had 100Mbps feed to the Internet? (Score:4, Funny)
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It's just like the try before you buy on most mp3 sites. So all we do is let users sample 5 seconds of the song to see if they like it. But, err... we let them choose any 5 second window and we do that a couple of million times a minute...
You didn't hear? (Score:2)
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(playing Devil's advocate here, of course)
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So, by that logic, isn't it the record company who's ultimately responsible for all the "damages" caused by this chain of illegal distribution?
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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
Rather Brief for a Panel Discussion (Score:2)
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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.
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Is it possible that he considered himself smarter than you because you're just a attorney and he's just a lawyer?
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I'm curious why "Professor Hansen" would take a position. As an academic, I would have expected him to be neutral, or at least biased in favor of some interpretation of law. Any opinion? Is it possible that he considered himself smarter than you because you're just a attorney and he's just a lawyer? ;)
1. Personally, I think a moderator should put his own biases aside when acting as a moderator, but Prof. Hansen has been very successful in putting this together, so who am I to say?
2. Most likely the reason he's biased is that he has been representing some large content owning companies.
3. No I don't think he considered himself smarter than me. He's just afraid that I'm right. In fact, I think he knows that I'm right, but wants to persuade the legal community to think otherwise.
4. Two things that neve
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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.
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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.)
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If I have been granted the power by the Constitution of the United States to have sole discretion over the manner in which my works are distributed...
The Constitution does not grant you any such power, it only gives Congress the option of offering you limited protection.
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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While I don't agree with the "making available = infringement" idea, I think your analogy is flawed.
Namely, there's a big difference: the only purpose of making available an MP3 over P2P is so someone can infringe it by acquiring it from you. There are clearly other uses for placing automobiles in plain view besides to permit them from being s
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)
Fair fight, anyone? (Score:2)
That's not even a fair fight. It's like Raphael fighting a random bank robber. (I recently saw the latest TMNT movie.) Couldn't they have found somebody more at NYCL's level?
Read TFA this time guys (Score:2)
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.
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What should "making available" be? (Score:2)
Why is the owner of a PC suddenly respsonsible for the actions of his machine when it comes to content, but he is out of obli
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.
'one of the most irrational things... (Score:2)
Really Ray? I mean it IS egregious, but a fine, any fine, really doesn't compare to losing your liberty for simple possession of marijuana. And that happens to people every day.
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Really Ray? I mean it IS egregious, but a fine, any fine, really doesn't compare to losing your liberty for simple possession of marijuana. And that happens to people every day.
I agree with you entirely on the Marijuana issue, and on the futility and staggering inefficacy of the war on drugs in general, but there are two things to point out here.
One is that he said "one of", which implies that there could be several. Remember, he's a lawyer, so you have to pay attention to the words he uses because you'd better bet he's in the habit of choosing them carefully. You seem to think that he's saying that this is "the most irrational thing", not "one of the most irrational things."
Th
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'Making Available' is nonsense (Score:2)
Do not stores make CDs/DVDs/Books available?
Do not shoplifters shoplift?
Why aren't Wal-Mart/Best Buy/Circuit City/etc. being sued?
Re:Good Grief! (Score:5, Insightful)
The rest of us have no problem.
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When you're right, you're right.
If it's too smart for you in here, head back to Digg.
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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 ?
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All eight of them
Re:Who are these people? (Score:4, Funny)
Re:What? (Score:5, Funny)
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I am suing you for cleaning the sprayed coffee out of my keyboard. You have been served.
Ray, you are now officially one of us - for better or for worse.
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When the people who run the country can't be bothered to do it "the proper way", then that's evidence of their arrogance, laziness and unbridled contempt for the people they rule over.
And they call themselves the "intellectual elite"...
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You actually said this about America with a straight face:
The law runs the country. This is a nation of law, not a country of lawyers who are best paid by large content owners.
Yes. I said it with a straight face. The law runs the country. Yes there are 4 record companies and 6 motion picture companies who are doing their best to distort the law, but in the end the law will prevail. The federal judiciary was caught off guard by this bizarre litigation onslaught, but more and more judges are doing their homework and getting wise to what is going on. The RIAA is losing.
Re:What? (Score:4, Insightful)
Dance for me, monkey!
Re:What? (Score:5, Insightful)
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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-abu
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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
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I have nothing against AC posts, and I have posted in favor of copyright (and also in reforming the current stupidity that is copyright in the
Comment removed (Score:5, Funny)