Court Says Fair Use May Hold In Some RIAA Cases 145
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."
I didn't know they could do that (Score:3, Interesting)
I didn't think a court could render an opinion if it's not on the case before it. If a future case involving "space shifting" comes before the court, will they look to this ruling as precedence, or will it be treated more like an amicus curiae brief?
Re:I didn't know they could do that (Score:5, Informative)
Courts can bloviate all they wish. You're confusing two legal concepts: The case and controversy requirement, and dicta.
A court requires an actual case with actually adverse parties.* This is the case and controversy requirement.
That said, courts can bloviate all they wish. The fancy legal term is dicta. It is not binding on any court, not even the same Court. Sometimes distinguishing between the real opinon and dicta can be tricky.
However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.
Re:I didn't know they could do that (Score:5, Informative)
OT: bloviate (Score:2)
'Bloviate': such a perfectly cromulent word! How could it be that this is the very first time I have ever seen it?
Kudos, glrotate! To bring such a rare and wonderful word out of the obscure depths of ancient dictionaries and set it glittering before all the Intarwebs is a marvelacious deed, indeed!
Re:I didn't know they could do that (Score:5, Insightful)
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Thank you. While I knew there had to be something, I didn't know what the legal framework was for handling this kind of stuff.
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The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.
Re:I didn't know they could do that (Score:4, Informative)
1. Precedence can only be set by a court higher than the court you are presently in. Even the same judge can ignore the way he ruled on an identical case. This judge was essentially outlining all the loop holes that the defense could have used but didn't, essentially outlining every way in which the defense's lawyer failed to make a convincing argument and creating a road map for lawyers who deal with a similar case in the future.
2. Amicus curiae is a brief, submitted to an appellate court, which deals with to a specific issue in a case, tailored to the facts of the present case to persuade the court to rule in favor the the amicus curiae's position. The case today is not an amicus curiae because it was not written to the facts of a case presently being decided by a court, it is about a case that happened in the past.
This case is a good road map for defendant's attorneys to learn what not to do.
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It's not precedent for at least two reasons. First, district courts are the low courts on the totem pole--there is no one below for them to set precedent for! Second, the court's writings on what might have been are what is called in legal circles "dicta". That's writings by the court that are not part of the actual legal decision or the supporting reasoning. Think of dicta as being the court giving its personal thoughts or opinions.
Re:I didn't know they could do that (Score:5, Interesting)
Problem now is, how does Tenenbaum get an appeal?
Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.
It may wind up being the RIAA that's going to "need an appeal".
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It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Re:I didn't know they could do that (Score:5, Informative)
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.
If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.
And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.
If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
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Wow, that would indeed be good news. Thank you for the explanation!
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Just keep in mind that, while NYCL has a great deal of knowledge on these subjects, his opinions have been proven to be very optimistic in the past...
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There's no such thing as guessing too high on the greed-o-meter.
Re:I didn't know they could do that (Score:5, Insightful)
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not. If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law. And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional. If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.
Additionally, your argument that the court should limit them to $750 per work is unsupported. The statutory range of $750-30k per work is a question of fact for the jury. The judge can't overrule that within the range without evidence of clear error - he could limit the decision if it was at the $150k/work willful level, for example, or he could limit it to $200/work for innocent infringement (he can't, actually, in this case, on these facts), but he can't say "the range is right, but I'm using the lower limit". There's simply no basis for it.
No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
Incidentally, I was the one who sent you an email a month ago, discussing a paper I'm writing and asking if anyone had argued this point. I haven't found anything yet. Paper's about half done and will be done before January 4th. Any interest in reviewing it and potentially filing an Amicus Brief?
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IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages? Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court sa
Re:I didn't know they could do that (Score:5, Interesting)
IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes, and no. In the copyright acts of 1790 through 1976, Congress talked about statutory damages as non-punitive - i.e. roughly proportional to the actual damages. However, in the 1976 Act and the more recent amendments and acts including the DMCA, Congress talked about the deterrent effect, particularly where software, music, and movies can be copied with a click of a button.
Under the current law, the damages are supposed to be roughly proportional - a best estimate, if you will - but also have deterrent effect, meaning they can be higher.
Add to this a crucial point which Ray and Tenenbaum's attorneys disregard in discussing damage levels as being $1.40 per work: under copyright, damages include not just the cost to the infringer of a license, but the lost profits to the copyright owner. This is explicit, even going back to the original 1790 Act - damages include not just the infringer's profits (which may be zero, as here where Tenenbaum isn't charging for copies), but also the lost sales to the owner due to the work now being widely distributed royalty-free. In the 1790 Act, statutory damages were one dollar per page - that's way more than the cost, particularly back when the entire book may cost only a few dollars.
Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow.
Treble damages aren't actually an issue. There's no explicit provision for them in the copyright act.
One important thing to note when considering the lower limit of $750 - that's "per work". So, if you make a single copy of a song, it's $750. If you upload that copy to 10 people, it's still only $750. If that copy ends up downloaded by tens of thousands of people... it's still $750. That's what the statutory damage levels are trying to do - the copyright owner doesn't have to run around and find every single person that downloaded a song or bought a copy of your illegally-reprinted book. Instead, we can just assume you made a number of copies causing about that much in damages. If you didn't, the plaintiff gets a small windfall - but if you did, the defendant is relieved of a much higher liability.
It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence".
See my discussion above - they're not actually that far out of line. As for criminal law, the copyright act does actually have a criminal provision... and this is what the RIAA is misreading:
17 USC 506 makes it a misdemeanor (meaning up to a year in jail) for willfully infringing a copyright for purposes of commercial or private financial gain; or by "making it available on a computer network". Sounds a bit familiar, huh?
Specifically, the statutory damage provisions include $200 for "innocent infringement", $750-30,000 normally, and "up to $150,000 per work for willful infringement". Now, the RIAA defined "willful" as essentially "anything not innocent", which makes that middle $750-30k range useless. And unbelievably, Tenenbaum never argued that one, or at least not well.
My argument (and the paper I'm drafting) is that the jury shouldn't have been asked to come up with a per-work damage amount of "up to $150k", but rather that they should have been presented with the $750-30k range... They likely wouldn't have picked 18k then, but something lower, which would have been more reasonable.
Re:I didn't know they could do that (Score:4, Informative)
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.
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Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.
[Citation needed]
Juries are allowed to consider the estimated actual damages when awarding statutory damages, but a plaintiff can opt for statutory damages from the outset and never, ever show any evidence regarding actual damages. In that case, there is no "reasonably proportioned to the actual damages" because no one knows what the actual damages are - rather, they get somewhere between $750-30k per work, or $750-150k per work in the RIAA's interpretation.
Unless, of course, you have some citation that s
Re:I didn't know they could do that (Score:5, Informative)
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Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.
Nope, did none of that. But I have a feeling you're not going to acknowledge any of my arguments, so I'll just point out that while you're focusing on 17 USC 106(3), you've neglected to consider 17 USC 106(1), hence why your defense of "it wasn't for profit" fails every time. Your other arguments, such as those based on Gore, have also been repeatedly disproven.
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The real big fallacy is that he's responsible for not just those he uploaded to but everyone down the line. if A uploads to B who then uploads to C who then uploads to D, with that argument the RIAA can get C on uploading to D, B for uploading to C and by extension D and A for uploading to B and by extension C and D. Essentially, they're collecting the same damages 3 times. Statistically, if you download something once you upload it once (even if at first everyone downloads to 5 people, at the end there's f
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The real big fallacy is that he's responsible for not just those he uploaded to but everyone down the line.
That's not a fallacy, though. That's explicit in the copyright act, going all the way back to the first one in 1790, when you could be awarded statutory damages of one dollar per page, even though a book at the time might only be a few dollars. Furthermore, this wasn't punitive - but rather was an attempt to award compensatory damages. That's because if an infringer was running a printing press, he was likely running off a thousand copies or more.
Consider the potential loophole you've created: A uploads to
A bigger issue (Score:2)
Which would be bad...exactly how?
Note: I'm not trying to be obtuse. I recognize the need for copyright law. But lots of folks who read slashdot don't. Since you're one of the few well-reasoned voices that stands up for anything other than anarchy in this area, I thought I'd invite you to summarize the more basic concepts from your pov. Just a thought.
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You don't need a copyright loophole to do that. Person A can buy something legitimately, move it across the border legitimately and hand it off to B legitimately. If A is aware of B's intent then A could be charged with aiding copyright infringement either way.
If we stick with the idea that you're responsible for everyone down the line, people could be paid many times for the same offense, which is many times worse than the problem you described.
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Which would be bad...exactly how?
Note: I'm not trying to be obtuse. I recognize the need for copyright law. But lots of folks who read slashdot don't. Since you're one of the few well-reasoned voices that stands up for anything other than anarchy in this area, I thought I'd invite you to summarize the more basic concepts from your pov. Just a thought.
Well, the easy answer is "courts are the wrong place to wipe out an entire chapter of the US code - take it up with Congress if you want to get rid of copyright law."
The less easy answer is that copyright is a useful thing in its ability to protect authors. I think we all recognize certain problems with it - length for a start, and the ease with which massive statutory damage awards are applied - but it's important not to throw the baby out with the bathwater. Bereft of copyright protection, we'd be back i
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He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.
You seem to have a decent grasp of the laws at play here and offer an interesting counterpoint to NYCL. I'm curious on this one part. Why do you believe that he should be liable for secondary infringement (or more specifically, that statutory damages should reflect assumed secondary (and maybe even tertiary) infringement)?
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He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.
You seem to have a decent grasp of the laws at play here and offer an interesting counterpoint to NYCL. I'm curious on this one part. Why do you believe that he should be liable for secondary infringement (or more specifically, that statutory damages should reflect assumed secondary (and maybe even tertiary) infringement)?
Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.
I agree that this gets a bit sticky in the era of peer to peer sharing, but I think the better arguments are that (i) the statute as currently worded
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Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.
So, why not sue the publisher then? Laziness?
And am I allowed to double-dip and sue both? Nonsense!
Unless there are aggravating circumstances (drunk, insane, underage, conspiracy), there's no way someone should be held responsible for their friend's action.
I'm not sure you are arguing for fair dealing here.
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Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.
So, why not sue the publisher then? Laziness?
The publisher is in Canada, outside the reach of US law.
And am I allowed to double-dip and sue both? Nonsense!
Obviously not. In US law, you aren't allowed to collect full damages from multiple parties.
Unless there are aggravating circumstances (drunk, insane, underage, conspiracy), there's no way someone should be held responsible for their friend's action.
Conspiracy was exactly what I was suggesting. So, I take it you agree with me?
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No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's inc
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No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
The defense had made an argument regarding the requirement for willful infringement, but the judge rejected it, since, predictably, it went way beyond the statute.
Got a link to the defense argument, by any chance? The only one I can find is the plaintiff's opposition brief to that jury instruction. They make arguments and quote a bit, but I haven't seen the full defense brief.
And it seems, from those quotes, to be a different argument than I'm making - the defense seems to be calling willful "something more than knowledge", but didn't define it. The plaintiffs attacked it mainly for being vague, and apparently succeeded, because the instruction that went to the jury
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He did a very good job of explaining it in his reply.
Re:I didn't know they could do that (Score:4, Insightful)
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Re:I didn't know they could do that (Score:4, Insightful)
"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"
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So fair use is a little different topic, how much control over derivative works a copyright owner has can be a big debate. But how many people are getting a judgment for $625,000 against someone who did a remix or mashup?
People aren't getting harsh punishments for derivative works (remix or mashups), they are getting in trouble for exactly copying an original work
I still think that the punishment weakly correlates with the crime. You shared a song with the entire internet for free. There is the sma
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Because of the scale of the internet your sharing could approach $625,000 of lost revenue.
Bullshit. Let's assume the average CD costs 20 dollars. That'd mean you caused the loss of 31,250 CDs' worth of revenue. At an estimated 50 megs per CD, that'd amount to 1.5 TB of data. At 5 megabits per second upstream, you'd have to share non-stop for a full month to accrue that much data. Now, I overestimated both the price of a single CD, and the typical upstream bandwidth available for a domestic user, and underestimated the size of a CD in MP3 format. Assuming a more typical 1 mbit upstream, we're up
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Problem now is, how does Tenenbaum get an appeal?
It's hard to expect an appeal for someone who said they DID commit the action in question, did it willingly and makiciously.
Gertner warned the RIAA at the beginning of the Tenenbaum case that they were ruining peoples lives and "this has got to stop." She was obviously willing to give the kid the benefit of the doubt going into the trial.
Joel Tenenbaum wasted the time, effort and interest of far too many people by letting a large case take place, garnering na
Sounds like the Court got it right. (Score:1, Informative)
Without reading the order, it sounds like the Court got it right.
I.e. the damages question is a tricky one and excessive damages are to be guarded against, attorney's fees shouldn't be a slam dunk, and Fair Use exists - however downloading whatever you feel like just to list to on your ipod isn't Fair Use.
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I don't see how this is a good thing, making file sharing and fair use synonymous.
The Court, deeply concerned by the rash of file-sharing lawsuits, the
imbalance of resources between the parties, and the upheaval of norms of behavior brought on
by the internet, did everything in its power to permit Tenenbaum to make his best case for fair
use. Over the record companies’ strenuous objection, the Court allowed the fair use defense to
be added at the eleventh hour.
Making a small clip of a copyrighted work so the work could be discussed is one thing, but at the last minute when you are loosing to cry "fair use" looks disparate and only makes fair use a future target.
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Sorry if it seems like I'm picking nits, (I do understand that you meant "losing", damned keyboards..) but did you mean desperate when you said "disparate"? Damned spell checkers, mistype a single key and the spell checker "corrects" it with the wrong word. Is that what happened? I hate it when that happens to me. And if you did indeed mean "disparate" could you explain?
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Downloading whatever you feel like just to list on your ipod is completely legal in the US. UPLOADING the copywritten files is illegal and infringement of copyrights. This is a very important difference that the RIAA doesn't want you to realize.
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She admitted liability, case closed.
One may as well have confessed to murder in Texas.
Mostly the court said the defense sucked (Score:5, Insightful)
Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.
http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars [arstechnica.com]
This isn't something that applies to all future cases.
Re:Mostly the court said the defense sucked (Score:5, Informative)
Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.
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The court also shows a certain naivete: "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,"
As we have come to understand, copyright law is written by lobbyist organizations and entered into as treaties. 'Congress' or 'public benefit' basically does not figure into the equation.
Re:Mostly the court said the defense sucked (Score:4, Insightful)
That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?
That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.
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Right. And, usually, when it does happen it is widely criticized.
Re:Mostly the court said the defense sucked (Score:4, Insightful)
"legislating from the bench" is actually what a common law legal system is all about.
If you're talking about a civil law system then by all means you'd be correct.
Anyone who thinks that judges don't "legislate from the bench", please study these following landmark cases:
Roe v. Wade
Marbury v. Madison
Brown v. Board of Education
etc...
These binding precedents have just as much legal force coming from the pen of a judge as they would have coming from the pen of a congress critter.
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What did you expect, seriously? A mutiny of the courts? A political jab at the election process or the parties and congressmen and senators? They are parts of the checks and balances but they couldn't rebel against the system without breaking the division of power. Courts refusing to enforce copyright law despite Congress being, at least in some form, explicitly granted the authority in the constitution would break the most fundamental rules. You might as well have the President issuing laws by decree and C
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Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there
So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer? Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?
The focus of any court should be to give the defendant the lightest possible sentence they conscionably can. If the US shifted its focus back to that, we'd improve the state of healthcare and discipline. Barratry wouldn't be so ridiculously prevalent, and more people could do the Ri
Re:Mostly the court said the defense sucked (Score:4, Funny)
I hope that that someone will actually read the opinion rather than accept an anonymous slashdot poster summary of what it says.
Re:Mostly the court said the defense sucked (Score:4, Informative)
Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there
So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer?
No, the point highlighted in the above article is that instead of making a case for specific types of fair use that might be applicable, the defendants lawyers tried to argue rather broadly that all downloading was fair use, something that the judge couldn't possibly find in favour of. In essence the judge said that they were open to certain arguments being made, but the defendant never tried to make them and instead opted for a bat-shit crazy defense coupled with irresponsible and outright illegal conduct. It's not hard to see why Tenenbaum wound up getting the judgement that he did.
since when is space shifting from CD not fair use? (Score:5, Insightful)
I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?
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Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!
Re:since when is space shifting from CD not fair u (Score:4, Interesting)
The question of if you have the CD but rather than ripping it, you download an already ripped mp3.
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If that were found to be valid precedent, then that would mean that it was legal to download a copy of a DVD that you currently own from a foreign torrent site? I assume that you wouldn't be violating the DMCA's circumvention clause...
Re:since when is space shifting from CD not fair u (Score:4, Interesting)
As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?
But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?
There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.
Note to self: (Score:2)
Don't ever take a judge's advice and allow Charles Nesson to be my legal counsel.
Victory? (Score:1)
Defense Council: "YAAAAAY! Wait a flippin second..."
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The judge never said that fair use would be a justifiable defense for the case at hand, but that for some future case it could be a justifiable defense.
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Like if you run out and buy all of the CDs you infringed, and then appealed the ruling to a higher court?
Its gotta cost less than $625k
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Damages should be limited by law (Score:3, Interesting)
It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.
It's insane that any individual can be expected to pay $625,000 unless they are wealthy.
The ability for the defendant to pay should be considered when damages are decided. Our legal system is so seriously screwed up.
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Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.
I can rip a song from a CD or a movie from a DVD and make it available to the planet for downloading. Unless I keep some kind of records, it is impossible to know how many people have subsequently downloaded it. Let's say it is shared via some P2P software for a day - not many people could have downloaded it in only 24 hours. What if it is available for a year?
The only calculation possible is
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> Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.
Not at all.
The relevant "art industries" have some idea of what this stuff is worth. They need to be able to evaluate value
in order to do the "business" part of art. So for ANY bit of "art" whether it is something an unsigned band or
something that already has as well established track record, the labels or the studios have some idea of what they
could be losing.
The CEO Virgin Atlantic doesn't
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The CEO Virgin Atlantic doesn't just shake a dead chicken while dancing around in a circle mumbling.
Can you provide proof they dont?
And what about Sony/BMG? That's clearly how they choose some of their new "artists"...
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Which allows you to violate copyrights to your heart's content as long as you use a frontman with a net worth of zero.
Which isn't terribly hard to do, really.
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This does happen sometimes, but they call them commodities, not creative works.
Well, you'll find that copies of creative works are commodities. One copy of Romeo and Juliet is as good as another, and so publishers wind up competing against one another, and the public benefits from cheap, widely available copies.
You have to realize that without Copyright, Patents and other methods of control distribution of Creativity are the only way to encourage Creativity.
This is demonstrably false. Copyright as a means
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How sure are you that Intel needs government enforcement to protect their products?
>
Yes they absolutely do! Trust me the difference between the cost Intel pays for each chip and what you pay is padded with a huge profit and initial investment recoup cost. Copying the design wouldn't be very difficult. There are many methods. Electron Microscope to reverse engineer, paying an insider to give you trade secrets, stealing key employees with intimate knowledge of design. Even if they were 6 months behind technology wise, an x86 compatible computer that ran at 75% of Intel speed for $50
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Let me clarify.
There are many other Fabs and quality engineering other then intel. I don't think it's a stretch to say that without the burden of copyright one of these other fabs could easy mimic if not straight up copy an intel processor and sell it for a lot less then the cost that intel does. Intel is making a tidy profit, because their competition is low, and there are no new entrants into the x86 market because of copyright and patents
Cost structure is very important, let's take for example a no
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Intel is making a tidy profit, because their competition is low, and there are no new entrants into the x86 market because of copyright and patents
Competition is usually a good thing; anti-competitive actions are usually illegal
With no copyright system enforced by the goverment, I propose that we would see intel go out of business...
Copyright normally does not apply to physical objects (you're thinking of patents)
...because they would never recoup their billion dollar investment in there processor when others copy and sell it just above raw costs.
Companies do not "sell it just above raw costs." They sell items where marginal cost=marginal revenue [wikipedia.org] (this is a simplification--competition with Intel would influence pricing, but not to the extent that economic profit [wikipedia.org] becomes zero or negative)
I would say that a majority of copyrighted material would not be made [if not for copyright]
What about Creative Commons [creativecommons.org]? What about William Shakespeare? Wikipedia? "All rights reserved; we wi
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Microchip manufacture is a capital intensive operation and when you've sunk metric craptons of cash into R&D the last thing you need is some two-bit competitor peeling your research and undercutting you by being able to skip out on the research you paid for.
One thing I think can curb IP law abuse is:
Tax royalties. Have the feds take off a bit from the top and invest the proceeds in the National Science Foundation or something.
Heck, even giving the USPTO a bit of it might help them hire more examiners.
A
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Ha! I can see you agree in stronger copyright laws than I do, but only marginally.
Personally I believe there should be much stronger copyright laws with reasonable fair use provision for a much shorter but reasonable time period. This is the only logical conclusion I can come to. Honestly unless you are a commodity laborer, Your value to your company is the creativity and intelligence you put in your job. Trust me, if your company could steal similar creative and intelligent work for free they wouldn't be paying you. Since I contribute my works in exchange for cash, I feel like i
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Yes I don't think we can agree on that. Two wrongs don't make a right in my book. To a point I can agree with cheating a corrupt system, the problem with the copyright system is how do you draw up who is corrupt? There are people that don't abuse the copyright system, can we still steal from them? I personally just try and avoid the corrupt ones and deal as often as possible with those not abusing the system.
If a law is justified, and there aren't cases were breaking the law is justified, I don't s
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And, with piracy being so prevalent now, how can you say harsh punishments have been working? I could Google for some data, but I am guessing it's not readily available....
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And, with piracy being so prevalent now, how can you say harsh punishments have been working?
A crime is prevalent, punishment is not working, let's just make it legal!
It's not the one song that is the problem, it is that you are sharing on the internet. A public form that has billions of people on it. It is very possible that you shared that 1 song 100,000 times. Unfortunately you didn't keep track of everyone that downloaded it. However I bet if you did have nice logs, the court and any sane jury would easily reduce the fine to near copies * normal purchase cost
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A crime is prevalent, punishment is not working, let's just make it legal!
Depending on whether you think laws are a social contract or set down by some higher power (and this doesn't need to be supernatural), I suppose my following point may be interpreted differently.
In our current system, I think the idea anyway was to create a system by and for everyone so we can live together as best we can. Laws should be generally with the consent of those living under them (government by the consent of the governed).
Court decision (Score:1)
They're talking about fetish porn, aren't they?
Format shifting is *probably* already legal...... (Score:3, Interesting)
In the USA:
Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.
Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.
Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.
The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.
The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).
A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:
1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).
Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.
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The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.
Diamond v. RIAA got into this, and found that computers break the chain of AHRA-compliance. Thus MP3 player manuf
Happiness (Score:1)
I don't think everyone will be happy until a court rules that downloading everything that can be is "fair use", because the quality of MP3's is only "fair" and after they are downloaded you really can't use them for very much.
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...which is perfectly consistent with the previous 50 years of being able to get music for free.
You condition the consumer to the expectation that they can get entertainment for free then they are bound to continue thinking that.
It's just that now most any form of "broadcast" is also a "download". That's just the evolution of technology.
A song for the season (Score:2)
Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
With fair use, you may see
a chance for copyright victory.
Oh Tenenbaum, oh Tanenbaum,
your legal team is awesome.
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Nice try, cute but it doesn't scan at all.
The moral law is straightforward (Score:2)
Absolutely, if I'm using your copyrighted work for profit, I need to have made a deal with you, first, fair cop. But otherwise, fair use needs to be greatly expanded (and will be sooner or later, it's just a question of how much pain we all suffer in the meantime because of these retards. Seriously, it's been over a decade and they still haven't figured it out).
Space shifting not fair use? (Score:2)
"E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."
You mean in the land of the free you do not have the right to use the media content you bought in any way you like in any device you own.
Only in Canada you say. Pitty.
No wonder the **AA hate us so much.