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Judge May Take "Fair Use" Away From Jury

kdawson posted more than 5 years ago | from the know-it-when-i-see-it dept.

The Courts 342

NewYorkCountryLawyer writes "In what I can only describe as a shocker, the Judge in SONY BMG Music Entertainment v. Tenenbaum has, on her own, issued an order questioning whether the jury will be allowed to decide the 'fair use' issue at all, or whether the Judge herself should decide it. Judge Nancy Gertner's decision (PDF) notes that the courts have traditionally submitted the fair use defense to the jury, but questions whether that was appropriate, since the courts have referred to it as an 'equitable' — as opposed to a 'legal' — defense. This decision came from out of the blue, as neither party had raised this issue. IMHO the Judge is barking up the wrong tree. For one, all across the legal spectrum in the US, 'equitable' defenses to 'legal' claims are triable to a jury. Secondly, as the Judge herself notes, the courts have traditionally submitted the issue to the jury. It also seems a bit unfair to bring up a totally new issue like that and give the parties only 6 days to do their research and writing on the subject, at a time when they are feverishly preparing for a July 27th trial."

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You better lose the Jews, whitey (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28698985)

With Jews you lose so to win you must lose the Jews.

Hey... that's not FAIR! (4, Insightful)

Proudrooster (580120) | more than 5 years ago | (#28699003)

Hey... that's not FAIR, to take away FAIR USE. :)

Re:Hey... that's not FAIR! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28699081)

Hey... that's just TERRIBLE. Unless you're under the age of 10 and English is not your first language. In which case, I concede that you're a clever little foreign fellow.

Justifying piracy on Slashdot (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28699287)

Fellow pirates,

I implore you to continue your campaign on Slashdot to make me feel less guilty. I know that not paying someone for their work is wrong, but if Slashdot posts enough articles bashing the RIAA/MPAA/copyright law/whatever, it's easier for me to accept what I'm doing emotionally by visualizing someone else as the bad guy. Once on the forefront of relevant IT news, Slashdot is now a lame repository of mainstream pseudoscience links and pro-piracy articles to appease a dwindling readership. I am overjoyed.

Even though the open source community is about giving back as much as it is taking, I'm just going to take. I'm a human leech with self-serving beliefs and an inability to empathize with content creators who are trying to make a living.

I don't believe John Carmack should be paid for his work. I'm going to sit on my ass while he spends years coding the next advanced 3D engine from id Software. When their game comes out, I'm going to pirate it without giving a second thought about paying John Carmack for his work. I'm just so used to pirating things now that I take it for granted. If anyone mentions John Carmack to make me feel guilty, I'll look for Slashdot articles that bolster my viewpoint, such as this one [slashdot.org] , amusingly posted in the Your Rights Online section even though none of my rights are being violated.

According to that study, it's okay to not pay people for their work because there's some vague hope that they'll make up the difference in income through "concerts and speaking tours." Artists are now forced to take time out of doing what they want to do. John Carmack must stop programming in order to make money from programming. It's genius. The study does exactly what I need it to--make me feel less guilty when I pirate. We've managed to stretch the truth so far that we're actually telling ourselves that we're helping artists by not paying them for their work. Excellent job.

I look forward to Slashdot telling me everyday who the bad guys are. Even though Slashdot has sued websites in the past for copyright infringement, and they've pretended to care about plagiarism [slashdot.org] , we're supposed to go along with Slashdot's anti-copyright agenda. I'm okay with that hypocrisy because it serves me. It makes me feel less guilty when I pirate something. Remember, I'm not the bad guy--the RIAA/MPAA/whatever is. That makes it okay for me to not pay people for their work.

EULAs and copyright licenses are wrong, yet the GPL is good. Piracy isn't theft, yet GPL violations are referred to as "stolen GPL code." I accept all of these double-standards because it serves me. I pretend not to notice when someone points out that the GPL relies on copyright law, and if I want to get rid of copyright, my beloved open source code will no longer be protected by the GPL. I don't care, because I'm too busy concerning myself with what I want for free, not about the consequences. I want to get rid of copyrights because I've been told that copyrights are the bad guy, and they are an obstacle to my rampant piracy.

Fellow pirates, let us continue our selfish leeching. Let us paint others as the bad guys to absolve us of our emotional guilt. Our goal is to convince people that piracy is something the good guys are doing in a fight with the evil corporations. Making money is wrong, even though Slashdot displays ads, and it cost me money to buy the computer I'm using to pirate stuff.

Yours truly,
A fellow Slashbot

Re:Justifying piracy on Slashdot (1, Insightful)

Quothz (683368) | more than 5 years ago | (#28699417)

Even though Slashdot has sued websites in the past for copyright infringement

I was gonna mod you up, but I'm just too darned curious about this line. I must've missed it, assuming you're not making it up. Anyone remember such a thing?

Re:Justifying piracy on Slashdot (0)

ls671 (1122017) | more than 5 years ago | (#28699589)

Good question, hard one to google, try a search for "Slashdot suing website" ;-))

Re:Justifying piracy on Slashdot (2, Informative)

Anonymous Coward | more than 5 years ago | (#28699601)

I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot," and Slashdot sent a legal takedown notice due to copyright infringement.

Re:Justifying piracy on Slashdot (1)

Artifakt (700173) | more than 5 years ago | (#28699823)

Don't mod him up just yet. There's some truth and at least a little insight in the post, but it's also got quite a few inaccuracies (whether the poster means to lie or is just inadvertently wrong is hard to say). Don't assume he is not making anything up until you get a reliable reference or two.
      I do know that from what I have seen, there are a lot more posts to slashdot that assume that there are right and wrong ways to make money than claim either that making money is always wrong or always right. I'm sure you could find a post or two that say making a profit is always immoral, but how many of them do you think their are, and how many posts from people who think that there are both moral and immoral ways to make money do you think there are in a typical slashdot thread on copyright. Now what does that make the poster, who has misrepresented at least 90% or so of the people who post on this subject. Maybe he's not doing it deliberately, but why mod up someone who oversimplifies things to the point where he is claiming 90% or more of the posts he has seen don't exist?

Re:Justifying piracy on Slashdot (2, Informative)

Quothz (683368) | more than 5 years ago | (#28699875)

Don't mod him up just yet.

Couldn't do it if I tried, now that I've asked. I can't claim to fully agree with the poster, but I likes it when folks raise on-topic issues for debate. Notwithstanding my derailment, of course.

Good question, hard one to google, try a search for "Slashdot suing website"

Tell me about it. Although the AC under you might be on the right track...

I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot,"

I'm not sure why, but that spurs a memory: Remember Diggdot? They got C&D'ed, but by Digg, not /. Might be what the OP was thinking of. Looks like their operating as Doggdot these days.

Just copypasta (3, Informative)

Reasoned Mind (1554009) | more than 5 years ago | (#28699959)

This copypasta is posted in every article even slightly related to IP... nothing interesting about it.

What does PirateBay, and Sweden have to say ? (0)

Anonymous Coward | more than 5 years ago | (#28699825)

Hm?

IANAL (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28699015)

IVERYRETENTIVE!

NewYorkCountryLawyer is a little bitch (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28699025)

The last thing I wanted to do this Saturday night was spend several hours writing, editing, and typing this letter. However, I needed to do it because it's sincerely the best way to ask Ray Beckerman to rephrase his criticisms in a more reasoned way. Let me cut to the chase: Ray is the type of person that turns up his nose at people like you and me. I guess that's because we haven't the faintest notion about the things that really matter such as why it would be good for him to reinforce the impression that inane blackguardsâ"as opposed to Ray's assistantsâ"are striving to expose and neutralize Ray's enemies rather than sit at the same table and negotiate. Quasi-snappish and illiterate, his prevarications resemble a dilapidated shed. Kick in the door and the whole rotten structure will collapse, proving my claim that I am now in a position to define what I mean when I say that there is no evidence to support Ray's accusations. What I mean is that the tone of his opuscula is eerily reminiscent of that of antihumanist pinheads of the late 1940s in the sense that the impact of his wanton, lawless declamations is exactly that predicted by the Book of Revelation. Evil will preside over the land. Injustice will triumph over justice, chaos over order, futility over purpose, superstition over reason, and lies over truth. Only when humanity experiences this Hell on Earth will it fully appreciate that Ray claims that we should abandon the institutionalized and revered concept of democracy. I respond that his arrogance will lead him to make things worse quicker than you can double-check the spelling of "ultramicrochemistry".

If an attempt to bombard us with an endless array of hate literature isn't grumpy, it certainly is mean-spirited. We must overcome the fears that beset us every day of our lives. We must overcome the fear that Ray will deprive people of dignity and autonomy. And to overcome these fears, we must admonish Ray not seven times, but seventy times seven. You may wonder why he is afraid of change. It's simply because he wants to annihilate a person's personality, individuality, will, and character. Faugh.

Even though Ray's apostles want so much to twist my words six ways for Sunday that the concept of right vs. wrong never comes up, this does not negate the fact that the poisonous wine of nepotism had been distilled long before Ray entered the scene. Ray is merely the agent decanting the poisonous fluid from its bottle into the jug that is world humanity. He likes to posture as a guardian of virtue and manners. However, when it comes right down to it, what Ray is pushing is both mumpish and adversarial.

If truth, like beauty, is in the eye of the beholder, then I have frequently criticized Ray's unspoken plan to make me the target of a constant, consistent, systematic, sustained campaign of attacks. He usually addresses my criticisms by accusing me of racism, defeatism, child molestation, and halitosis. Ray hopes that by delegitimizing me this way, no one will listen to me when I say that Ray wants to get me thrown in jail. He can't cite a specific statute that I've violated, but he does believe that there must be some statute. This tells me that the spectrum of views between libertinism and fetishism is not a line but a circle at which hectoring quacks and the most depraved mythomaniacs I've ever seen meet. To properly place Ray somewhere in that spectrum, one needs to realize that if Ray could have one wish, he'd wish for the ability to install a puppet government that pledges allegiance to his villainous junta. Then, people the world over would be too terrified to acknowledge that Ray has spent untold hours trying to base racial definitions on lineage, phrenological characteristics, skin hue, and religion. During that time, did it ever once occur to him that materialistic goofballs are intrigued and puzzled by his amalgam of pretentious prætorianism and power-drunk Jacobinismâ"a tangled web of KKK, Freudian, encounter-therapy, populist, Ayn Rand-like, and Marxist notions? That's not a rhetorical question. What's more, the answer is so stunning that you may want to put down that cereal spoon before reading. You see, Ray apparently believes that his worthless, brainless coalition of irrational, devious popinjays and amateurish vulgarians is a respected civil-rights organization. You and I know better than that. You and I know that alarmism has served as the justification for the butchering, torture, and enslavement of more people than any other "ism". That's why it's Ray's favorite; it makes it easy for him to perpetuate the nonsense known technically as the analytic/synthetic dichotomy.

Those of us who are too lazy or disinterested to show you, as dispassionately as possible, what kind of insipid thoughts Ray is thinking about these days have no right to complain when he and his hangers-on hammer away at the characters of all those who will not help him turn clowns loose against us good citizens. If there's a rule, and he keeps making exceptions to that rule, then what good is the rule? I mean, society must soon decide either to teach the most snivelling caitiffs I've ever seen about tolerance or else to let Ray keep a close eye on those who look like they might think an unapproved thought. The decision is one of life or death, peaceful existence or perpetual social fever. I can hope only that those in charge realize that Ray says that everyone would be a lot safer if he were to monitor all of our personal communications and financial transactionsâ"even our library records. Why on Earth does Ray need to monitor our library records? The answer is rather depressing but I'll tell you anyway. The answer begins with the observation that Ray has already begun insulting my intelligence. I wish I were joking but I'm not. What's more, Ray's compeers were recently seen bombarding me with insults. That's not a one-time accident or oversight. That's Ray's policy.

You'd think that someone would have done something by now to thwart Ray's plans to fabricate all sorts of biased ad-hoc rules and regulations. Unfortunately, most people are quite happy to "go along to get along" and are rather reluctant to perform noble deeds. It is imperative that we inform such people that when I hear Ray say that he is omnipotent, I have to wonder about him. Is he thoroughly lazy? Is he simply being craven? Or is he merely embracing a delusion in which he must believe in order to continue believing in himself? I don't pretend to know the answer but I do know that there's something I've observed about Ray. Namely, he may not know how to spell "labyrinthibranchiate" but he certainly knows how to ensure that all of the news we receive is filtered through a narrow ideological prism. I've further observed that I can easily see Ray performing the following unregenerate acts. First, he will paint pictures of corrupt worlds inhabited by abysmal sectarians. Then, he will send licentious parvenus on safari holidays instead of publicly birching them. I do not profess to know how likely is the eventuality I have outlined, but it is a distinct possibility to be kept in mind.

Ray may elevate unstable storytellers to the sublime right after he reads this letter. Let him. In the near future, I will debunk the nonsense spouted by Ray's cheerleaders. Without beating around the bush, I'll tell you now what I have concluded about his brazen complaints. I've concluded that Ray managed to convince a bunch of vicious franions to help him practice human sacrifice on a grand scale in some sort of dour death cult. What was the quid pro quo there? We must honestly ask ourselves questions like that before it's too late, before Ray gets the opportunity to irrationalize thinking on every issue. Although he occasionally exhibits a passable simulacrum of rationality, I am hurt, furious, and embarrassed. Why am I hurt? Because Ray's epigrams were never about tolerance and equality. That was just window dressing for the "innocents". Rather, the whole of Ray's gutless worldview may perhaps be expressed in one simple word. That word is "mercantalism". Let me explain: Ray can't attack my ideas, so he attacks me. It could be worse, I suppose. He could stonewall on issues in which taxpayers see a vital public interest. Why am I furious? Because he has recently been going around claiming that truth is whatever your grievance group says it is. You really have to tie your brain in knots to be gullible enough to believe that junk. And why am I embarrassed? Because Ray believes that hanging out with closed-minded jokers is a wonderful, culturally enriching experience. That's just wrong. He further believes that he is a perpetual victim of injustice. Wrong again!

Ray's faithfuls have been trained, organized, and motivated to intensify race hatred. Not that I've come to expect any better from Ray. While the concept of broad-based peace and social justice coalitions remains desirable, some people believe that one day his idolators will compile readers' remarks and suggestions and use them to brush away the cobwebs of officialism. Such people are doomed to disappointment, especially when one considers that Ray is a man with more ambition than conviction. I explained the reason for that just a moment ago. If you don't mind, though, I'll go ahead and explain it again. To begin with, he says that he is clean and bright and pure inside. That is the most despicable lie I have ever heard in my entire life.

Ray contends that he commands an army of robots that live in the hollow center of the earth and produce earthquakes whenever they feel like shaking things up a bit on the surface and that, therefore, colonialism brings one closer to nirvana. This bizarre pattern of thinking leads to strange conclusions. For example, it convinces ophidian blockheads (as distinct from the flagitious, incomprehensible drug addicts who prefer to chirrup while hopping from cloud to cloud in Nephelococcygia) that Ray can walk on water. In reality, contrariwise, we must soon make one of the most momentous decisions in history. We must decide whether to let Ray offer stones instead of bread to the emotional and spiritual hungers of the world or, alternatively, whether we should test the assumptions that underlie his cajoleries. Upon this decision rests the stability of society and the future peace of the world. My view on this decision is that we are observing the change in our society's philosophy and values from freedom and justice to corruption, decay, cynicism, and injustice. All of these "values" are artistically incorporated in one person: Ray Beckerman.

Frankly, Ray recently stated that it's inappropriate to teach children right from wrong. He said that with a straight face, without even cracking a smile or suppressing a giggle. He said it as if he meant it. That's scary because he demands obeisance from his slaves. Then, once they prove their loyalty, Ray forces them to make bargains with the devil. The things that he says about Marxism range from the trivial and inarticulate to the ignorant and incoherent. An equal but opposite observation is that I think that his claim of fairness is demonstrably false. You probably think that too. But Ray does not think that. Ray thinks that ebola, AIDS, mad-cow disease, and the hantavirus were intentionally bioengineered by jaded usurers for the purpose of population reduction. I could be wrong about any or all of this, but at the moment, the above fits what I know of history, people, and current conditions. If anyone sees anything wrong or has some new facts or theories on this, I'd love to hear about them.

Re:NewYorkCountryLawyer is a little bitch (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28699297)

Bra-VO! That is the gold standard of trolls. Very well done.

May I enlist your services? I have a few research papers that I need fluffed up before they hit the studiolo.

Re:NewYorkCountryLawyer is a little bitch (1)

Artifakt (700173) | more than 5 years ago | (#28699837)

You spent several hours going to a website and typing Ray's name into a form to autogenerate a rambling complaint letter? Poor little troll, either you have the slowest Internet connection of us all, or someone must have punched you in the nose and broke all your little fingers.

Automatic Appeal? (5, Insightful)

electricprof (1410233) | more than 5 years ago | (#28699037)

It almost seems like the judge is begging for an appeal to kick it upstairs and make it somebody else's problem. IANAL but isn't this like asking for an appeal?

Re:Automatic Appeal? (2, Interesting)

Artifakt (700173) | more than 5 years ago | (#28699911)

It does sound like the court is going to end up issuing a decision that somehow formalizes what fair use includes. That's not even something an appellate court would normally risk taking on. It's more something the Supreme Court might consider doing. If it does happen, watch for the judge to only elaborate on one point of fair use, say deciding that region shifting is as legitmate as time shifting per analogy with the Betamax case. I really can't see any trial judge giving us a big list of new examples of fair use and exemptions from fair use, and detailing all sorts of subsidiary limitations. It's ballsy as all get out to try for just one. It almost seems like the judge is begging for an appeal that will have to go all the way to the very top.

Re:Automatic Appeal? (2, Interesting)

Repossessed (1117929) | more than 5 years ago | (#28699985)

Begging for an appeal maybe, but the appellate would probably refer it back to trial to have a jury decide.

Who needs juries... (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28699107)

when Obama's in charge?

Just Remember (4, Insightful)

bky1701 (979071) | more than 5 years ago | (#28699111)

Ballot, Soap, Jury, Ammo; they should be used in that order.

Re:Just Remember (4, Funny)

exley (221867) | more than 5 years ago | (#28699243)

Around here I think soap should be first in that list... I mean, sheesh, people.

Re:Just Remember (1)

Gerzel (240421) | more than 5 years ago | (#28699765)

And remember soap should be used in a process that repeats at regular intervals.

Re:Just Remember (2, Funny)

mrmeval (662166) | more than 5 years ago | (#28699279)

Bathe first dammit! Stinking while in line to vote is just wrong.

Re:Just Remember (2, Insightful)

DoofusOfDeath (636671) | more than 5 years ago | (#28699363)

Ballot, Soap, Jury, Ammo; they should be used in that order.

When a few people have tried that, they tend to end up in Federal prison for a long time, and they don't exactly get crowds of like-minded supporters pulling open the prison doors.

It's an interesting idea to espouse, but lets be honest, 99.99999% of us lack the courage to be that patriotic.

Re:Just Remember (5, Funny)

GameMaster (148118) | more than 5 years ago | (#28699491)

Yea, the full list should read:

Ballot, Soap, Jury, Ammo, Soap on a Rope

Re:Just Remember (1)

robinesque (977170) | more than 5 years ago | (#28699421)

lol i get it: boxes

Re:Just Remember (1, Offtopic)

Curien (267780) | more than 5 years ago | (#28699459)

Little boxes
on the hillside
liitle boxes full of tickey-tackey
Little boxes on the hillside
little boxes all the same.

Re:Just Remember (0, Offtopic)

Nefarious Wheel (628136) | more than 5 years ago | (#28699705)

liitle boxes full of tickey-tackey

I applaud you in the name of the memory of Malvina Reynolds. [wikipedia.org]

Re:Just Remember (1)

nacturation (646836) | more than 5 years ago | (#28699423)

You might want to prefix that with something along the lines of "There are four boxes to use in the defense of liberties: ..."

However, it's arguable as to whether that's really applicable in this particular instance. If you're downloading a crapload of MP3s and sticking them on your iPod to listen to, then that's hardly fair use. If a student is being sued for using music in an instructional video, then yeah... start going through the boxes.

Re:Just Remember (3, Funny)

monkeySauce (562927) | more than 5 years ago | (#28699523)

OK, boxes of ballots, bars of soap... they all become lethal projectiles at sufficient speed, but I don't understand the jury. Why not just launch jurors one at a time? It would require greater targeting precision but you would need a lot less energy, and it should make your reload time a lot shorter.

Re:Just Remember (0)

Anonymous Coward | more than 5 years ago | (#28699595)

Ballot, Soap, Jury, Ammo; they should be used in that order.

Too bad - I was on a jury, but we hadn't finished Soap or Ballot yet, so I just rolled over. I mean, I had to use them in that order.

Re:Just Remember (1)

HTH NE1 (675604) | more than 5 years ago | (#28699621)

Ballot, Soap, Jury, Ammo; they should be used in that order.

And since according to this they're already denying the use of the jury box, well, you have three guesses what's next.

Re:Just Remember (1)

Theaetetus (590071) | more than 5 years ago | (#28699851)

Ballot, Soap, Jury, Ammo; they should be used in that order.

So, just to be clear, you're saying that if this decision goes awry at the jury level, you're ready to shoot people?

Just checking...

What is it with judges going beyond the law? (4, Interesting)

wowbagger (69688) | more than 5 years ago | (#28699115)

NYCL, perhaps you can enlighten us all - it seems to me of late that more judges are going beyond what I understand is the scope of a judge's job (to adjudicate the law) and into "deciding" cases based on matters OUTSIDE the scope of law.

Am I misremembering what I learned back in 6th grade about the role of the judiciary in the legal system, or are these judges indeed going beyond the scope of their position?

The Law is complicated. (4, Interesting)

Anonymous Coward | more than 5 years ago | (#28699197)

The Law is complicated--it's not a simple system of rules, it's a question of what words have people used to describe what they think the rules ought to be for the past five hundred years or so, how have those descriptions changed the rules as people have decided what they should mean, and it's not easy to get it right 100% of the time--particularly when you realize something about the law that may be inconsistent or mean that it should be handled in a slightly different way than how people thought. The issue here isn't necessarily the judge going beyond the judge's duties--especially since if that's really what's happening an appeals court will generally say so--as it is the fact that the judge only gave the lawyers a few days to research it. The law moves at a lethargic pace; six days is like a clock cycle in ALU-time.

Re:The Law is complicated. (-1, Offtopic)

Archangel Michael (180766) | more than 5 years ago | (#28699715)

The law WAS a simple set of rules, and has been mangled over the years by people who keep saying .... "There ought to be a law" for some one-off case and so it becomes "a law".

Complicating matters are laws that conflict with other laws, jurisdictions and so on. And as we gained lawyers in the Judicial, Legislative and Executive branches of government, they tend to pass more and more laws, most of which are NOT NECESSARY or in many cases even wanted, we have the situation as we have now.

Even now, we're about to add a whole new complication onto our burgeoning legal system called "Universal Health Care", only this time, you're going to have LESS rights than you do now!

Tell me, you want Universal Health Care? You want all the rules and regulations coming into play that tell you what you can and can't eat, do or otherwise live? How about having cases of health decided by Bureaucrats rather than you and your doctor?

It all starts out with a neat little idea "Everyone should have health care" which turns into "there ought to be a law" and there you have it. Universal Health Care system we can't afford, at a time of economic crisis caused by over regulation and under regulation (depending on who and what you're looking at). And all those rules and regulations which were supposed to stop the greed and malfeasance didn't stop it at all, but rather made it even harder to detect because the people TRUSTED the system that ended up failing them.

And people think we can trust Government to run health care! My GOD man, are you even paying attention???

IF YOU AREN'T LOOKING AFTER YOURSELF YOU ARE A FOOL!

Re:The Law is complicated. (1)

Evil Shabazz (937088) | more than 5 years ago | (#28699943)

How about having cases of health decided by Bureaucrats rather than you and your doctor?

Everything else in your post aside, your argument against Universal Health Care fell apart at this question. It sounds by the tone of the question that you believe those in control of paying the doctor are, in fact, the ones controlling what care is administered. If so, how is that different from the current system in which the insurance provider is controlling that payment?

You really want healthcare reform? How about looking at malpractice cases and torte reform? Protection from malpractice suits costs tons in redundant tests. Malpractice insurance makes up about a third of healthcare costs in the US. It would be a lot more cost effective to treat our sick if our doctors didn't have to spend so much time and money protecting themselves from our recovered.

Re:The Law is complicated. (0)

Anonymous Coward | more than 5 years ago | (#28699945)

Ah Archangel Mick is on his anti health care hobby horse again, and ads usual ignoring the facts.

Simply put the US already spends more on health care per capita than countries that have universal health care.

I live in a country which has excellent health care provided by the govt, and laugh every time another ignorant uniformed American (Which seems to be a lot of them) comes up with another libertarian bullshit rant like this.

Give it up Mike we are all sick to death of your rubbish

Re:The Law is complicated. (3, Insightful)

Falconhell (1289630) | more than 5 years ago | (#28699977)

A beaurocrat decides your health care eh?

Doesn't that already happens with your HMO system?

Some beancounter decides your treatment.

Would you rather a public servant or an accountant
decide your treatment?

Re:What is it with judges going beyond the law? (1)

Ethanol-fueled (1125189) | more than 5 years ago | (#28699329)

It's simple: our judges and legislators are making up the rules as they go along. Many of them are out of control and are being bought and sold if not stalked and threatened.

IANAL, but you are right (4, Interesting)

Anonymous Coward | more than 5 years ago | (#28699371)

Judges decide matters of law, juries decide matters of fact.

Something like fair use could be either, depending on the circumstances. Contract law is a good example. Suppose that there is a case about a contract: If the contract is clearly written, and its meaning is easily determined by reading it, a judge will decide; based on law. On the other hand, if the contract's meaning isn't obvious, witnesses might be called to clarify what the intent of the signing parties was. In that case, there may be a dispute about facts and a jury would decide.

Of course, the judge may make a mistake about who decides and, in that case, there would probably be an appeal.

Re:IANAL, but you are right (2, Insightful)

The_mad_linguist (1019680) | more than 5 years ago | (#28699813)

Jury nullification, anyone?

I was under the impression that in the even of a contract being vague, the person who didn't write it gets their way. That principle, if I recall correctly, was used to declare that, legally speaking, tacos are not sandwiches.

Re:What is it with judges going beyond the law? (1)

ArchieBunker (132337) | more than 5 years ago | (#28699425)

I believe the term is called "legislating from the bench".

Re:What is it with judges going beyond the law? (5, Informative)

Grond (15515) | more than 5 years ago | (#28699577)

In this case the judge is adjudicating the law. There is a legal question about whether it is the province of the judge or jury to decide the value of a claim to the equitable defense of fair use. You might ask why that would be a question in the first place. Mr. Beckerman (aka NewYorkCountryLawyer) has presented his side, but allow me to summarize the issue in less biased language.

American law is in large part derived from English common law. The common law had, for historical reasons, two parallel systems of courts, law courts and equity courts (I am ignoring the admiralty and ecclesiastical courts for the sake of brevity). Legal claims were brought before law courts, and law courts could give legal remedies. Legal claims are what we would think of as most normal kinds of claims (trespass, breach of contract, etc), and legal remedies are typically money damages.

The courts of equity, on the other hand, heard equitable claims and granted equitable remedies. They also followed the rules of equity rather than legal rules. It is convenient (though somewhat imprecise) to say that where the law is concerned with hard and fast rules, equity is concerned with fairness. Thus, equity courts heard cases where the common law courts failed to administer justice, whether because a rule was unfair in the particular case or because no cause of action existed to cover the particular case. Equitable remedies were also more flexible than straightforward money damages: equity courts tended to give relief in the form of an injunction. So, for example, where the law might compel a defendant who stole a painting to pay the owner its value, equity would compel the defendant to return the actual painting because it is a unique thing that cannot truly be replaced for any price.

So, being a British colony, America inherited this dual court system. Although the federal courts and all states but Delaware have since merged the courts of law and equity, the distinction between legal & equitable claims, legal & equitable defenses, and legal & equitable relief remains.

What has any of this got to do with fair use and the jury? Well, although the law courts often had factual issues decided by juries, the equitable courts did not have juries. Thus, there is a long-standing precedent that issues of equity are decided by the judge, not the jury, and fair use has been described by many courts as an equitable defense to the legal claim of copyright infringement. If you recall from the description of equity above, it amounts to a claim that, even if the defendant did infringe the plaintiff's copyright, it would not be fair or just to hold the defendant liable in this case.

You may note that fair use is codified in 17 USC 107, but that is essentially a codification of the preexisting equitable defense. Thus, some courts have found that the codification into law did not destroy the essential equitable character of the defense.

On the other hand, there are a lot of court cases where the fair use defense was submitted to a jury. Now, it could be that that happened because the judges in those cases had the law wrong or that neither side brought up the issue and the default is to submit fact-intensive questions like fair use to the jury. Or it could be that those judges had the law correct and for various reasons fair use is a question of fact to be submitted to the jury. That is what the judge would like the sides in this case to brief her on, so that she can decide that legal question before the trial begins.

IANAL (0)

Anonymous Coward | more than 5 years ago | (#28699843)

U AND I SHOULD ANAL

that is equitable relief, and the Queen would approve!

Re:What is it with judges going beyond the law? (1)

Theaetetus (590071) | more than 5 years ago | (#28699877)

Best summary evar.

You are standing in a dimly lit room (5, Funny)

Kligat (1244968) | more than 5 years ago | (#28699129)

There are dull incandescent bulbs hung down by wire over a set of towering oak podiums. Behind you are endless rows of rusty metal folding chairs, all occupied by elephants and donkeys, except for a few rats toward the front. The bailiff is an Argrue, standing in the shady area against the wall. You don't know what an Argrue is, but you can guess it's like what Arkansas is to Kansas and it looks vicious.

The judge uses a battle axe in place of a gavel, which would be fine if it didn't leave so many marks on the wood when it's banged, and wears an ancient Norse viking helmet. The smaller podium has a guillotine attached to it near the front, with the microphone being placed in front of the slot where you would place your head.

You have in your inventory a rope, which is binding your hands together, and a bright orange jumpsuit of -255 AGI, which you are currently wearing. The only exit is DOWN, through a trap door.

Re:You are standing in a dimly lit room (1)

robinesque (977170) | more than 5 years ago | (#28699439)

What the hell does AGI stand for?

AGI (0)

Anonymous Coward | more than 5 years ago | (#28699511)

Is the new DEX

Re:You are standing in a dimly lit room (1)

spicyed (954272) | more than 5 years ago | (#28699613)

Agility. =x

Re:You are standing in a dimly lit room (4, Funny)

nacturation (646836) | more than 5 years ago | (#28699473)

> GO NORTH

Re:You are standing in a dimly lit room (0)

Anonymous Coward | more than 5 years ago | (#28699513)

> KILL SELF

Re:You are standing in a dimly lit room (4, Funny)

Kligat (1244968) | more than 5 years ago | (#28699975)

You struggle your way north whilst wrapping the rope around your neck, but unfortunately all it gives you is a rope burn, and perhaps more unfortunately, not the kind of burn that involves starting a fire.

The judge reads a list of charges related to plagiarizing elements of a certain text adventure game, which you no doubt attempted to shrug off as fair use at the time, while banging the battle axe gavel after each sentence is read. The argrue grabs you by the shirt collar and asks you to swear on the Bible, and so you shout a string of obscenities.

98/100 HP

Re:You are standing in a dimly lit room (1)

Zelucifer (740431) | more than 5 years ago | (#28699485)

I would like to give you one moment of internet fame. That was definitely one of the
five best /. comments I've read in the past decade". Thanks for the laugh man.

For the other poster: AGI = Agility

Re:You are standing in a dimly lit room (3, Funny)

Dragonslicer (991472) | more than 5 years ago | (#28699505)

You are eaten by a grue.

Re:You are standing in a dimly lit room (0)

Anonymous Coward | more than 5 years ago | (#28699791)

>FUCK THIS SHIT

I'm sorry, I don't understand.

>LIKE HELL YOU DON'T, I'M UNPLUGGING THIS DAMN GAME

You don't have the guts, meatbag.

Re:You are standing in a dimly lit room (5, Funny)

plover (150551) | more than 5 years ago | (#28699859)

>look innocent
I see no innocent here.
>

Re:You are standing in a dimly lit room (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28699939)

There are dull incandescent bulbs hung down by wire over a set of towering oak podiums. Behind you are endless rows of rusty metal folding chairs, all occupied by elephants and donkeys, except for a few rats toward the front. The bailiff is an Argrue, standing in the shady area against the wall. You don't know what an Argrue is, but you can guess it's like what Arkansas is to Kansas and it looks vicious.

The judge uses a battle axe in place of a gavel, which would be fine if it didn't leave so many marks on the wood when it's banged, and wears an ancient Norse viking helmet. The smaller podium has a guillotine attached to it near the front, with the microphone being placed in front of the slot where you would place your head.

You have in your inventory a rope, which is binding your hands together, and a bright orange jumpsuit of -255 AGI, which you are currently wearing. The only exit is DOWN, through a trap door.

WTF are you talking about? How is this insightful in any way?

Just continuing the trend of emasculating juries (1)

jordandeamattson (261036) | more than 5 years ago | (#28699143)

This is just another example of Judges emasculating juries, dis-empowering them.

I long for the days when juries (before the 2nd half of the 20th century) actually decided cases and where not treated like mushrooms by all.

Jordan

Re:Just continuing the trend of emasculating jurie (3, Insightful)

jmorris42 (1458) | more than 5 years ago | (#28699201)

> This is just another example of Judges emasculating juries, dis-empowering them.

Exactly. Judges these days want to rule. They don't want to be constrained by having to bother with juries, legislatures, laws, constitutions, and certainly not the executive. This case is a poster child for judicial activism.

So the 6th and 7th Amendments go into the toilet now... to join the 1st, 2nd, 9th and 10th, big parts of the 4th and 5th and the 8th. But we still have the 3rd Amendment inviolate!

Folks, when do we say ENOUGH! These idiots only get away with this foolishness because we just bitch and moan and don't make them pay a political price.

Re:Just continuing the trend of emasculating jurie (2, Informative)

Jeremy Erwin (2054) | more than 5 years ago | (#28699475)

But we still have the 3rd Amendment inviolate!

You wish! A case can be made [georgetownlawjournal.com] that NSA wiretapping violates the third amendment.

Re:Just continuing the trend of emasculating jurie (0)

Anonymous Coward | more than 5 years ago | (#28699757)

Touché.

unfair? (1, Informative)

Anonymous Coward | more than 5 years ago | (#28699179)

Having been a party in a lawsuit that was decided by the US Court of Appeals on the basis of an issue that was neither raised nor briefed at either the trial level or the appellate level, all I can say is that this sounds quite normal to me.

That (4, Insightful)

Dunbal (464142) | more than 5 years ago | (#28699187)

Makes perfect sense. After all, fair use has been taken away from everyone else.

Re:That (1, Interesting)

Anonymous Coward | more than 5 years ago | (#28699269)

bribe! cough, bribe! cak- bribe!

You sure it's not Judge Judy? (0, Flamebait)

syousef (465911) | more than 5 years ago | (#28699189)

...because that's the only female US Judge I'm familiar with. (Well her at that copy cat from "People's court", but I can never remember her name). If that's representative then your judges are opinionated, pre-judge everything, apply the law in a slipshod way based on wether or not she likes you and wether or not you show her respect. The number of times I've seen her behave in a way that I considered irrational and inequitable is amazing. So this would fit right in!

Re:You sure it's not Judge Judy? (1)

ral8158 (947954) | more than 5 years ago | (#28699293)

...Judge Judy is not actually a US judge, just so you know.

Re:You sure it's not Judge Judy? (1)

syousef (465911) | more than 5 years ago | (#28699549)

Actually she is an ex criminal and family court judge presiding over small claims matters

http://en.wikipedia.org/wiki/Judith_Sheindlin [wikipedia.org]
"By 1976, Sheindlin's no-nonsense[2] attitude inspired New York Mayor Ed Koch to appoint her as a judge in criminal court.[2] Four years later, she was promoted to supervising judge in the Manhattan division of the family court.[2] She earned a reputation as a tough judge, notorious for fast decision making and wise-cracking judgments.[3]"

Re:You sure it's not Judge Judy? (5, Informative)

jfengel (409917) | more than 5 years ago | (#28699785)

...because that's the only female US Judge I'm familiar with.

You might want to pick up a newspaper more than once a year. A female US judge is the #1 news story in just about all of them for the last week.

Re:You sure it's not Judge Judy? (5, Funny)

Anonymous Coward | more than 5 years ago | (#28699903)

...because that's the only female US Judge I'm familiar with.

You might want to pick up a newspaper more than once a year. A female US judge is the #1 news story in just about all of them for the last week.

I never knew Michael Jackson was a female US judge.

Jury Rights (4, Informative)

pilsner.urquell (734632) | more than 5 years ago | (#28699211)

In the United States of America Jurors are the only citizens who who are above the law. The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

Unfortunately, these rights like many our other rights have been eroded.

http://en.wikipedia.org/wiki/Citizens_Rule_Book [wikipedia.org]

http://www.geocities.com/Heartland/7006/rulebook.html [geocities.com]

The American Form of Government [youtube.com]

Re:Jury Rights (3, Insightful)

Daniel Dvorkin (106857) | more than 5 years ago | (#28699355)

This "Citizens Rule Book" you seem so enamored of is not something that any sane person would take as a guide to US law.

Re:Jury Rights (1)

Zerocool3001 (664976) | more than 5 years ago | (#28699381)

The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

Which would quickly be overturned by said judge.

Re:Jury Rights (1)

pilsner.urquell (734632) | more than 5 years ago | (#28699471)

Jury Verdict is secret, reporters and other members of the media or the attorneys and parties involved in the case wish to ask jurors about their deliberations and what factors influenced the final verdict. Jurors are under no obligation to answer any questions about a case or comment upon it in any way.

Re:Jury Rights (0)

Anonymous Coward | more than 5 years ago | (#28699537)

Frankly I don't understand why. I mean sure there may be some reasons for upholding a law. But if a jury isn't tampered with, and they were randomly selected then it should be fine.

Re:Jury Rights (3, Insightful)

dcollins (135727) | more than 5 years ago | (#28699619)

The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

I actually said that to a judge in Boston when I had jury duty in a criminal case about 4 years ago. I was instantaneously booted from the jury pool. (Yay, I guess?)

Re:Jury Rights (5, Informative)

Grond (15515) | more than 5 years ago | (#28699655)

A page of history is worth a volume of logic, and a little history shows that this has nothing to do with the erosion of the power of juries.

Fair use was historically an equitable defense to copyright infringement, which means that it is a defense that would be brought in a court of equity. Courts of equity, unlike courts of law, never had juries. Even after the law and equity courts were merged in England and America, equitable issues remained the sole province of the judge.

The Seventh Amendment states: "In Suits at common law...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

The point of the phrase 'at common law' is to distinguish legal cases from equitable cases. From the very beginning of this country, jurors have never had the right to make decisions regarding equitable claims, defenses, or remedies.

Furthermore, the phrase 'no fact tried by a jury' should serve as a reminder that the role of the jury in America has also never been to judge the law but rather to judge the facts. So, a jury would answer the question 'did the defendant strike the plaintiff without provocation' but not 'is it a tort for one person to strike another without provocation.' And in fact, if a jury decides to ignore the law and find a plainly liable defendant not liable, then the plaintiff is very likely to appeal on the basis that no rational jury could find as that jury did, which is the usual standard for overturning civil jury verdicts.

The only place where jury nullification actually 'works' is the criminal law, as a jury verdict of not guilty is generally unreviewable except for things like jury tampering. As a practical matter, however, jury selection usually eliminates any possibility that the jurors will all agree to ignore the law.

Re:Jury Rights (0)

Anonymous Coward | more than 5 years ago | (#28699905)

And judges can put aside the determinations of juries if they so desire. It's a street fight, and it's only going to get worse as the country gets more polarized. Things might slow down a bit if the elementary schools quit teaching such a pollyanne-ish description of US government and how it works, but by and large this country is headed for some kind of cathartic event. Maybe not big and probably not violent, but deep to the bone.

Achem. Mistrial. (1)

girlintraining (1395911) | more than 5 years ago | (#28699223)

The judge is attempting to countermand the authority of the jury? Ah, I think someone's rusty on their Constitution. Jury's in this country have the ability to declare the law itself unconstitutional or cruel and unusual and have it struck down. It's not something judges like to advertise, and this one is probably concerned that they might wake up and say "hey wait a minute...", remember their Constitutional readings from high school, and put a big fat bullet in the entire debate.

Either that, or the judge wants to guarantee a whole new trial, because that's what a move like this is going to cause.

Re:Achem. Mistrial. (3, Insightful)

Daniel Dvorkin (106857) | more than 5 years ago | (#28699321)

Can you point out to me where in the Constitution jury nullification is mentioned?

Seriously, AFAIK, jury nullification is something we inherited from English common law, and was never really codified. It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

Re:Achem. Mistrial. (3, Insightful)

0123456 (636235) | more than 5 years ago | (#28699343)

It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

There is precisely zero point in having a jury if they aren't judging the law as well as the defendant. If courts merely existed to ensure that every law was enforced, there would be no need for juries.

The reason our ancestors fought for the right to jury trials was to protect them against arbitrary laws by ensuring that only one person in twelve had to disagree before the government would be unable to get a conviction.

Re:Achem. Mistrial. (1, Insightful)

Daniel Dvorkin (106857) | more than 5 years ago | (#28699389)

Huh? The main function of a jury in any criminal case is to decide whether or not the defendant broke the law, not whether or not the law is fair. If it were really true that "[t]here is precisely zero point in having a jury if they aren't judging the law," then in cases involving laws that pretty much everyone agrees on -- murder, for example, or armed robbery -- we wouldn't have juries at all. But of course we do, and in fact we regard the integrity and competence of the jury as being most important in precisely those cases where both the crime and the legal penalty for the crime are the most clear-cut and severe.

Re:Achem. Mistrial. (4, Interesting)

brunes69 (86786) | more than 5 years ago | (#28699461)

It's both.

" The jury has the right to judge both the law as well as the fact in controversy. "
--John Jay, first Chief Justice of the United States[4]

http://en.wikipedia.org/wiki/Jury_nullification [wikipedia.org]

Jury nullification has an important role in removing bad laws. For example, 60% of cases brought against prohibition were lost in the US, due mainly to jury nulltificatin (no one would convince anyone for it). This eventually led to the law being repealed.

Jury nullification (4, Insightful)

jmorris42 (1458) | more than 5 years ago | (#28699419)

> jury nullification is something we inherited from English common law, and was never really codified

Well yes and no. It is sorta implicit. Combine "no fact tried by a jury, shall be otherwise re-examined" with jurors being immune to retribution by the courts for their verdicts (barring jury tampering, etc) and jury nullification kinda falls out as a consequence. If the jury decides you are guilty according to the law but that law is stupid they are free to return not guilty. It is then pretty much impossible to try the perp a second time (unless it is a civil rights case... then the feds can have a second try. grr.) and the jury is in no fear of consequences for their actions even when they do something really infamous like set OJ free.

This judge obviously fears exactly such a thing so is attempting to bypass the jury. The correct response is impeachment. Anything less sends a signal to other judges that this sort of thing is acceptable, even if some higher judge rules she can't do it in this particular case. Violating the right to a trial by jury is something no judge should be allowed to even contemplate.

Re:Achem. Mistrial. (1)

bill_mcgonigle (4333) | more than 5 years ago | (#28699571)

Can you point out to me where in the Constitution jury nullification is mentioned?

It's been upheld, even exhorted by SCOTUS on several occasions from the earliest of times to recent history. You can find the relevant decisions easily enough.

Re:Achem. Mistrial. (0)

Anonymous Coward | more than 5 years ago | (#28699693)

Jury nullification exists because a juror can make his decisions as he sees fit and he does not have to tell you how he came to his decision. Some would say that the juror has to make his decision based on law, but there is no enforcement of this demand and no punishment for completely disregarding it.

Re:Achem. Mistrial. (1)

shentino (1139071) | more than 5 years ago | (#28699709)

Jury nullification is a concept derived from the combination of double jeopardy and trial by jury.

Re:Achem. Mistrial. (1)

Lehk228 (705449) | more than 5 years ago | (#28699899)

it's inherent to the jury system because the jury cannot be punished for it's decision. at least not yet (BTW, for the 4 box crowd, attempting to change this would be an appropriate reason to go to box #4)

Re:Achem. Mistrial. (4, Interesting)

sys.stdout.write (1551563) | more than 5 years ago | (#28699449)

Reading legal advice from people on Slashdot is a bit like reading music reviews from people on a Britney Spears Fan Club website.

In any event, I don't know why everyone is making such a big deal out of this. The judge hasn't made any binding decisions, she just raised an issue. This happens all the time.

Furthermore, even if she did decide fair use herself I am not convinced this would produce a worse result in this case. Juries are unpredictable (see the $1.9 million verdict against Jammie Thomas). Having a learned judge decide an (arguably) legal position isn't the end of the world.

I'm cynical. (0)

Anonymous Coward | more than 5 years ago | (#28699317)

Has the judge been bought out or does she just not care about the rights of the defendant?

Now I'm really confused... (1)

monkeySauce (562927) | more than 5 years ago | (#28699385)

t also seems a bit unfair to bring up a totally new issue

So this court and law stuff is supposed to be all about fairness?? It seems like it's always a lawyer fucking somebody, the judge fucking you over, or lawyers fucking each other, or a lawyer fucking their client, or two people fucking each other, while their lawyers fuck them too and the judge is just watching.
Yeah I really though court was just about fucking people.

they need to take rights off of faggots (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28699539)

and throw their worthless child molesting asses in the ovens.

DIE FAGGOTS DIE

Oh,well (1)

BatGnat (1568391) | more than 5 years ago | (#28699561)

Can anyone say appeal. Wont matter who wins..

Judge Gertner rocks. (4, Interesting)

Anonymous Coward | more than 5 years ago | (#28699565)

- I've had Judge Gertner save my ass. She's very smart, sees through nonsense, very willing to take on authority, government, etc. - It's not whether you can send fair use to a jury, it's whether you have to. If it's equitable with no damages, it can be handled every time by summary judgment even if there are issues of fact. - Juries are shitty at all complex civil matters; terminally shitty at intellectual property; and the U.S. marriage to civil juries is unusual and kind of stupid. If imprisonment is what's at stake, juries make sense. If it's about a TRO or civil damages for some kind of abstract infringement, juries make no sense. Other countries under common law and substantially similar copyright law would not use a jury. - Don't get all patriotic. Civil jury mistakes and artifacts are a core reason why the U.S. is polluted with so many lawyers, and so many rich lawyers. - Don't assume fair use is better before a jury. It's just more random. - It's odd for Judge Gertner to bring it up, agreed. But if it's a watershed issue both parties obviously should have been pursuing given their positions, but were afraid to touch, it's something she would do. - Slashdot is such an incredible fountain of ignorance, isn't it?

If you dig deeper, you will find... (0, Redundant)

freedom_india (780002) | more than 5 years ago | (#28699723)

...the judge is either an ex-lawyer of SONY or has a family member working in a high position in RIAA/MPAA.
It always is the case.
In fact i wouldn't be surprised if he has a financial interest in a RIAA member.

Keith Henson got screwed the same way. (1)

jcr (53032) | more than 5 years ago | (#28699763)

Back when the scientologists first sued him for breaking copyright on one of Hubbard's sillier screeds (he made a copy to give to the judge in Grady Ward's case), he wasn't allowed to claim that copying a work to bring it to the attention of law enforcement was fair use. The jury never got to hear the argument.

-jcr

Seems like a call for the Pirate Party US (1)

Dan667 (564390) | more than 5 years ago | (#28699767)

I heard there was one that formed in Canada. Has one been set up in the US yet?
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