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Fair Use Defense Dismissed In SONY V. Tenenbaum

kdawson posted more than 4 years ago | from the calvary-needed-no-questions-asked dept.

The Courts 517

Several readers sent us updates from the Boston courtroom where, mere hours before the start of trial, a federal judge ruled out fair use as a defense. Wired writes that "the outcome is already shaping up to resemble the only other file sharing trial," in which the RIAA got a $1.92M judgement against Jammie Thomas-Rassert. The defendant, Joel Tenenbaum, has already essentially admitted to sharing music files, and the entire defense put together by Harvard Prof. Charles Nesson and his students turned on the question of fair use. The judge wrote that the proposed defense would be "so broad it would swallow the copyright protections that Congress has created." Jury selection is complete and opening arguments will begin tomorrow morning. Here is the Twitter feed organized by Prof. Nesson's law students.

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517 comments

kdawson is a faggot (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28846305)

He sucks penises for dollars.

Mod me down you faggot liberals! (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28846535)

Niggers are beasts.

Re:kdawson is a faggot (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28846735)

That's a blatant lie. He sucks my dick all the time and I've never paid him.

Re:kdawson is a faggot (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28846755)

and your tip is probably pretty small too

Re:kdawson is a faggot (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28846745)

He sucks penises for dollars.

That's actually incorrect: being gay, he enjoys sucking penises, and does it for the thrill alone - no dollars need to change hands. Not that there's anything wrong with being gay, some of my best friends are gays and lesbians. But don't get the idea that I lean that way, I'm as straight as they come. Yay boobies!

Before the arguments start? (5, Insightful)

guruevi (827432) | more than 4 years ago | (#28846319)

I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning. Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

This seems like another bought off or pressured case.

Re:Before the arguments start? (4, Funny)

Gravedigger3 (888675) | more than 4 years ago | (#28846331)

The RIAA is objecting on the grounds that it is devastating to their case. Also known as the "Fletcher" defense.

Re:Before the arguments start? (4, Funny)

jav1231 (539129) | more than 4 years ago | (#28846843)

"Also known as the "Fletcher" defense."

Okay, I read that as "felcher" and thought, "Wow! This really DOES suck ass!"

Re:Before the arguments start? (5, Informative)

basementman (1475159) | more than 4 years ago | (#28846361)

All European countries? Spain is the only one, and lawmakers are trying to change that.

Re:Before the arguments start? (3, Informative)

Anonymous Coward | more than 4 years ago | (#28846407)

All European countries? Spain is the only one, and lawmakers are trying to change that.

Dutch law allows it, although of course the local copy of the RIAA would like to change that as well.

Re:Before the arguments start? (3, Informative)

fewnorms (630720) | more than 4 years ago | (#28846483)

And before people start posting [Citation Needed], here's a link [www.nrc.nl] to an article talking about Mininova in particular, but also mentions the current law in the Netherlands with regards to downloading music and movies.
Quoted from the article, for those too lazy to read it:

Under Dutch law, downloading games and software is illegal, but sharing copied films and music is not. The Dutch copyright law allows consumers to make a copy of CD's and DVD's they own, and to store those copies as files on their personal computers.

So there you have it.

Re:Before the arguments start? (1)

RedK (112790) | more than 4 years ago | (#28846503)

Does this allow them to then upload said music and films to other people on the Internet ? I don't think anyone has really been charged for just downloading stuff yet, but for "Sharing" (distributing, uploading).

Re:Before the arguments start? (3, Informative)

Animaether (411575) | more than 4 years ago | (#28846761)

To answer your question: no, it doesn't.

uploading is -not- allowed, downloading is. More accurately: distribution is not allowed, downloading is.

The distinction is a bit vague, as B downloading from A inherently means A is uploading to B, but quite technically a download and an upload are separate processes, hinging mostly on who initiated what.

Again this applies only to music and video (tv/movies). This doesn't apply to e.g. software* and books.

* yes, you're allowed to distribute linux distros and such. Please read these posts within the appropriate context.

Re:Before the arguments start? (0, Troll)

Hurricane78 (562437) | more than 4 years ago | (#28846913)

You mean "lawmakers" as in "hard-core criminals, trying to change the world for their profit"?

This has nothing to do with "laws" as in "rules to prevent people in a group from hurting each other, because they decided to work together".

But I wonder why they still work together then? (Rhetorical question. I know the answer.)

Sold out or bought out. (0)

Anonymous Coward | more than 4 years ago | (#28846367)

Seems just like politicians Judges are fungible too. The RIAA pays lawyers well.

Strike another victory up for the Guild before a trial even starts.

We have to break their death grip on our country.

Re:Before the arguments start? (4, Informative)

netwiz (33291) | more than 4 years ago | (#28846381)

Because it's not legal in the U.S., nor is there any precedent of case law to suggest Tenenbaum's actions were legal? In fact, all the case law to date only reinforces the concept that what Joel did was illegal, and essentially sets fire to any and all copyright law that's ever existed.

Re:Before the arguments start? (1)

RedK (112790) | more than 4 years ago | (#28846447)

Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

However, most cases are brought on the grounds that the defendant has been Distributing (uploading) said music. Does Fair use also cover this ?

Re:Before the arguments start? (1, Insightful)

Darkness404 (1287218) | more than 4 years ago | (#28846671)

I would assume that it would. Think of it in an analog analogy, if i had something that was legal in my state and gave it away for free with a sign saying basically "Note: This item is prohibited in the states of California, Virgina and Utah" and someone came in and got one of these free items. There is nothing wrong with me giving them to them if they are going to use it in the same state (use it as fair use) and there are public laws saying you can't download without fair use. However, if that person took my freely-given items then took them into another state, should I be at fault?

Re:Before the arguments start? (0)

Anonymous Coward | more than 4 years ago | (#28846733)

Yes, since that was obviously your expectation (and probably intention). Next stupid question?

Re:Before the arguments start? (1)

ikono (1180291) | more than 4 years ago | (#28846803)

and porn sites expect and intend under-18s to enter their sites?

Re:Before the arguments start? (0)

Anonymous Coward | more than 4 years ago | (#28846883)

That was, in fact, another stupid question. Thanks.

Re:Before the arguments start? (1, Insightful)

Shakrai (717556) | more than 4 years ago | (#28846785)

However, if that person took my freely-given items then took them into another state, should I be at fault?

I'll remember your logic the next time I want to buy a firearm that's legal in PA but illegal in my home state of NY. What's the worst that could happen?

Re:Before the arguments start? (1)

Darkness404 (1287218) | more than 4 years ago | (#28846793)

...In case you didn't read it, something tells me the person who sold you the gun would not be at fault... My post was entirely about how it would be perfectly legal for the person selling the item to sell it to you if there was no way of knowing where you were from or how it would be used.

Re:Before the arguments start? (2, Insightful)

Anonymous Coward | more than 4 years ago | (#28846561)

Fair Use is an important and necessary defence against claims of copyright infringement when the copying is done for legitimate purposes of commentary, satire, and/or academic analysis. It shouldn't be cheapened and undermined like this. Self-serving consumer-distributors who try to use "Fair Use" it to justify blatant copying-in-the-form-of-free-mass-distribution deserve to have their intellecually contrived rationales thrown out of court. Juries aren't supposed to rewrite legislation, so a defense argument that asks them to legislate from the jury box and create new exceptions to copyright out of thin air, should certainly be denied a hearing in court.

Re:Before the arguments start? (1)

BitZtream (692029) | more than 4 years ago | (#28846779)

Well, that would be great if the case was in Europe, but its not so your point is ... well ... pointless.

Re:Before the arguments start? (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28846891)

Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

You clearly weren't paying attention during the recent supreme Court nominee's Senate hearing. One of the Republifucks' main talking points was in reference to the judge's previous statements about consideration of foreign court decisions.

She was thoroughly beaten over the head about the issue.

We're only in favor of regarding foreign decisions when it will benefit business. Look at the way we suck up laws allowing surveillance from other countries, usually justifying it in the name of "homeland security".

But, when it comes to privacy law, we don't want to look over the fence. Oh, no -- European privacy laws be damned -- we want thirty-eight individual pieces of data on anyone passing through US airspace, even if they have no intention of landing here. Data is marketable -- the more the better.

Look at the prison system. We imprison a far greater proportion of our population than the runner-up nation. But why would we want to look at foreign incarceration policies? We've built a monstrous number of prisons, but some states, California included, are subsidizing the building and operation of additional prisons in other states, to which we can farm out our excess of prisoners. This does two things -- it "provides jobs" and, perhaps more importantly, it removes the prisoners a step further from California supervision and responsibility."Prisoner abuse??? Sorry, you'll have to take that up with the private contractor running the new prison."

"Ten states in that direction. And don't come running back to me if that state refuses you access to information you need to pursue your case, because all that information is now declared 'proprietary' by the contractors."

Re:Before the arguments start? (0)

Anonymous Coward | more than 4 years ago | (#28846903)

It's the judge's job to set the parameters of the case, and he or she is perfectly in their rights to disallow a defense. In this case both sides WERE able to argue the issue quite fully, just because it happened before trial doesn't mean it wasn't fully briefed for the judge by both sides.

Re:Before the arguments start? (-1, Troll)

eltaco (1311561) | more than 4 years ago | (#28846917)

no shit, buddy.
today, tenenbaum went down.
you can kill the revolutionary - you can't kill the revolution!

I am pretty fucking sick of what 'upstairs' is feeding me. so are most europeans.
I see this gleaming sparkle in the eyes of many americans and europeans - but obama just ain't the hot shit we make him out to be. as soon as a judge is bribed or they judge against the people, the basics of "from the people for the people" have been betrayed.

SOAP, BALLOT, JURY, AMMO!

Re:Before the arguments start? (2, Insightful)

Gerzel (240421) | more than 4 years ago | (#28846941)

Oh the judge is just saying that the standards for fair use are very vague and that to use them in a legal system you'd need an entire system to judge weather or not the use was in fact fair, a judgement system if you will. Too bad the US doesn't seem to have one of these at the movement.

Re:Before the arguments start? (1, Troll)

Hurricane78 (562437) | more than 4 years ago | (#28846945)

You say that, as if it were unusual for the judge to be bought.

Have you missed the entire Pirate Bay trial fiasco? (Hint: The judge and the people who could throw out the judge, were bought.)

gosh (5, Insightful)

wasabii (693236) | more than 4 years ago | (#28846335)

Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.

If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.

Re:gosh (3, Insightful)

timmarhy (659436) | more than 4 years ago | (#28846373)

you've nailed it. this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it. judges can't over rule the law, merely work within it's boundries.

judicial activism (0)

Anonymous Coward | more than 4 years ago | (#28846557)

you've nailed it. this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it. judges can't over rule the law, merely work within it's boundries.

Over ruling law is often called "judicial activism".

Judges over-ruling law... (4, Insightful)

benjamindees (441808) | more than 4 years ago | (#28846639)

Actually judges can (and should) over-rule the law. The judiciary exists as a check on both the executive in the application of the laws as written, and on the legislature in the drafting of laws that are in accord with constitutions and with individual rights.

If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.

As an aside, one of the more telling exchanges in the recent hearings for Judge Sotomayor was when the new Senator Franken naively asked her whether individuals have a free-speech right to unfiltered internet access [youtube.com] . Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress. This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system within the US and has led directly to the recent wholesale approval of human rights violations that we have seen in this country.

Interpreting individual rights in deference to acts of Congress or to claimed executive privileges has neutered the concept of individual freedom and human rights in the US, in cases involving everything from individual property seized by governments for the benefit of private developers, to the war on drugs, gun control, illegal wiretapping and habeas corpus violations of US citizens. We have reached the point that now not only do we have judges ignoring rights enumerated in the Constitution which they are sworn to uphold, but also ordering defendants not to defend themselves on the basis of these rights and denying them due process as well!

The judiciary as an enforcement arm of the sovereign was a notion we as a country should have cast aside with the Declaration of Independence. The fact that we have not is prima facie evidence of a need for the tree of liberty to be again refreshed in this country.

Re:Judges over-ruling law... (5, Insightful)

zippthorne (748122) | more than 4 years ago | (#28846889)

I was going to mod you up, but then I remembered the nutrient that the tree of liberty thrives upon and became depressed.

Re:gosh (0)

Anonymous Coward | more than 4 years ago | (#28846427)

No idea why you got marked troll - I guess it is the -1 "I like to share files and violate copyright so you must be wrong" mod. Except for the "convicted" part (can't be convicted in a civil case), you are absolutely right. Currently law in the US clearly says you can't violate copyright. End of story. Do it and risk getting fined. You are also absolutely correct that if people don't like this, they should work to change it. 100% agreed on that.

I think most folks here are in agreement that the "Disney law" or the "Sony Bono Bill" or whatever folks want to call it was a really bad idea.

Re:gosh (1)

netwiz (33291) | more than 4 years ago | (#28846429)

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

Re:gosh (2, Interesting)

Martin Blank (154261) | more than 4 years ago | (#28846477)

It's closer to having a front yard give-away of paintings that you copied off of work you recently saw at an exhibit for current artists.

Re:gosh (2, Funny)

PrescriptionWarning (932687) | more than 4 years ago | (#28846541)

no its closer to having a front yard give-away of CDs that contain digital pictures of paintings that you took with your digital camera you recently saw at an exhibit for current artists.

Re:gosh (1)

RedK (112790) | more than 4 years ago | (#28846549)

No, it's closer to someone uploading said music to other people on the Internet. Let's face it, there is no analogy that is going to be 100% perfect. It still is copyright infrigment to distribute the music without a proper license to do so, and this is why these people are getting sued.

Re:gosh (4, Funny)

Shakrai (717556) | more than 4 years ago | (#28846625)

Let's face it, there is no analogy that is going to be 100% perfect

That's because nobody has tried a car analogy yet.

Re:gosh (0, Redundant)

jkgamer (179833) | more than 4 years ago | (#28846559)

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

Except Tenenbaum was not making his OWN property available, it belonged to someone else. A closer analogy would be more like...

"Prosecuting people for picking their neighbor's locks and having enabled THEM to be burgled."

Re:gosh (0)

Anonymous Coward | more than 4 years ago | (#28846687)

No, a closer analogy is
'Leaving the door open. enabling your music CD's to be stolen and then illegaly played in a neighbour club, thus breaking copyright'

Re:gosh (1)

paeanblack (191171) | more than 4 years ago | (#28846715)

Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

It's more like leaving your workplace unlocked to be robbed with the expectation and understanding that others are doing the same.

Robbery is still a bad analogy, since it involved tangible and clearly monetizable loss. Here is a one that doesn't.

Assume you are the superintendent of an apartment building with a vacancy. It is illegal for you to squat in the vacant apartment, even though the landlords would not be "losing" anything. You get this brilliant idea to "forget" to lock the doors so the superintendent from across the street can squat there. There is a wink, wink, nudge, nudge agreement that your friend will do the same.

Yup, still illegal.

I'll all for erring on the side of the copyright infringer in the RIAA cases, given the inconsequential damages of the occasional infringement. I'm all for letting people off the hook when they claim "my kid did it", "my neighbor was on my wireless", or "I was just goofing around", and I'm okay with those excuses being abused, since the litigants are so grossly imbalanced.

Deliberately operating and maintaining a wide open server full of copyrighted material with full knowledge and expertise regarding your actions and their consequenses?

Yeah...no sympathy here

Re:gosh (1)

Gravedigger3 (888675) | more than 4 years ago | (#28846439)

The ability to get the law changes seems to directly correlate to the amount of money people are able to throw at the right politicians to further their agenda. The people who are passionate about the issue are usually not in a financial position to "lobby" against the current laws. Therefore people do the next logical thing, which is to ignore the laws which they are unable to change (see Marijuana).

Re:gosh (1)

stinerman (812158) | more than 4 years ago | (#28846515)

The idea that to change the laws we must become lobbyists or donate to lobbyists is extremely alarming.

Re:gosh (2, Interesting)

iamwahoo2 (594922) | more than 4 years ago | (#28846565)

copyright infringement may be against the law, but file sharing is not necessarily copyright infringement. Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.

Re:gosh (0)

Anonymous Coward | more than 4 years ago | (#28846577)

Still, how is it that he can't present his case to the jury? Isn't that the whole point of the court system?

Re:gosh (0)

Anonymous Coward | more than 4 years ago | (#28846597)

Analogically, it is forbidden to murder people. It is also forbidden to help others murder people. Thus if you throw out a knife, and someone picks it up and kills someone else, you should expect to be charged and thrown in prison, as you have helped him kill others.

Re:gosh (1)

drdrgivemethenews (1525877) | more than 4 years ago | (#28846607)

I don't get it either, and if the fair use defense wasn't just a (now discredited) holding action, I really don't get it. The polarizing thing, though, isn't so much the legality of the outcome, but the amazing mismatch between crime and punishment. But hey, we pot smokers have been dealing with that for decades.

Re:gosh (3, Insightful)

c0d3g33k (102699) | more than 4 years ago | (#28846643)

People are polarized because the law is in conflict with a belief many (or most) people are taught from childhood: sharing is good. Having candy? Bring enough for everyone, or at least give your friend half. Have a good book? Loan or give it to a friend. Done with the newspaper? Leave it at the coffeeshop table so the next person can read it. Can't afford books? Go to the public library and borrow them. Know a good recipe? Share it with friends and family. Know a good joke? Tell all the people at the pub. And so on. Digital technologies and the internet have allowed the act of sharing to transcend the limitation of physical goods so the act of sharing can positively affect even more people. The reason that the "filesharing is theft" message doesn't resonate with people is that they know it isn't. Sharing is a good thing. "Don't share files because we want everyone to pay us" doesn't resonate because it is based on greed. A practice considered good since childhood is now suddenly a crime, and a practice considered bad since childhood ("Mine!") is now suddenly the paragon of virtue. People are polarized because the situation is polarizing.

Re:gosh (1)

Whatsisname (891214) | more than 4 years ago | (#28846647)

"The law is the law" is whats said and used by people unable or unwilling to think for themselves.

We have juries for a reason. It is not right to convict someone solely on the basis of the existence of an unjust law.

If you think the laws as they are are just, then that's fine, but say so. Just don't say to convict simply because "it's the law".

Re:gosh (1, Insightful)

SheeEttin (899897) | more than 4 years ago | (#28846651)

It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law.

It's against the law to commit murder by stabbing someone to death. It's against the law to aid somebody else breaking the law. Knives, therefore, are illegal. See the flaw? File sharing is not inherently bad. Using it to infringe upon copyrights is.

Polarization comes from attacking one's rights (4, Insightful)

jbn-o (555068) | more than 4 years ago | (#28846665)

In previous copyright infringement cases in the US and abroad things just aren't that simple. American movie studios tried to argue that the VCR was helping people commit copyright infringement. Prior to The Pirate Bay's trial, The Pirate Bay's servers were stolen in what The Pirate Bay maintains was a joint effort of US government (at the behest of the American movie makers) and the Swedish government. This got Swedes riled, as I understand it, because there's no good reason why Swedes should have to satisfy American movie corporations in their copyright regime (should they choose to have a copyright regime at all). The RIAA is not to be trusted in court. Their history includes threatening the wrong people such as the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats. In 2007, the MPAA committed copyright infringement in their GNU/Linux distribution aimed at making university IT personnel spies on behalf of the MPAA. The MPAA famously illicitly copied the documentary "This Movie Not Yet Rated", which was critical of the MPAA on multiple grounds, and tried to pass their illegal copying as though it were acceptable in the process of issuing a rating for the movie.

People are polarized about this issue because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.

Re:gosh (4, Insightful)

Darkness404 (1287218) | more than 4 years ago | (#28846781)

Its not the fact that its against the law its the fact that A) these people are convicted for -insane- damages. Ok, how much is a song worth? About $.99 right? But to the RIAA they can sue for -hundreds- and -thousands- for a single song. So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars, perhaps ban me from the store, etc. they wouldn't sue me for many thousand dollars. Wait, but here is the thing, Wal-Mart -bought- the CD wholesale, Wal-Mart paid money for it, for digital copies they don't cost a cent to make so there are no lost profits. B) They are convicted for little to no evidence. It would be like a murder investigation throwing someone in prison because they were on the same street that the murder took place at the time of the murder. That wouldn't fly.

The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".

Re:gosh (1)

Rydia (556444) | more than 4 years ago | (#28846961)

Costs are where most people get tripped up.

First, think about the actual copying being done. Sure, using a p2p client you are downloading one copy of the song. But chances are, you are seeding to many, many individual copies of the same song, sometimes as many as thousands over the course of a download.

Second, damages are generous in copyright cases by design. Plaintiffs can recover treble damages. They're also eligible for special damages, which cover the victor's court costs, attorney's fees, and punitive damages. There are certain fields of law where enforcement is difficult and litigation cumbersome and expensive, so the courts are willing to heap large damages to keep rights holders from being dissuaded from bringing a strong claim (treble damages) and to try hard to dissuade people from infringing in the first place (punitive damages).

Third, you're looking at copyright wrong. Wal*Mart did buy the initial CD. But Wal*Mart didn't pay for the rights for all the people who downloaded the songs off the defendant. The defendant didn't, either. It's not a "well they wouldn't have made a sale" argument, or a "what was their actual cost" argument. This isn't an action for unjust enrichment, it's an action stating that a copyright holder's rights have been infringed. Lost profits and costs feed into the consideration, but they're not nearly central.

Re:gosh (0)

Anonymous Coward | more than 4 years ago | (#28846937)

I get that it's against the law to infringe copyrighted material. I have a problem it being against the law to aid someone else breaking the law. It's not my business to police whether or not everyone else has a right to a particular file that i've made available for my own torrent interests.

Seriously, what the hell? (5, Interesting)

netwiz (33291) | more than 4 years ago | (#28846339)

This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on. There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.

Re:Seriously, what the hell? (1)

Shakrai (717556) | more than 4 years ago | (#28846731)

There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place

What, you mean to suggest that admitting to committing the activity that the plaintiff claims caused them financial harm during a civil suit is not necessarily the best way for the defendant to proceed? Say it isn't so!

Fair use has to be one of the lamest arguments ever made to support file sharing. Mind you, I've done my fair share of downloading in my day, but I never would have claimed that fair use as a justification for doing so. If you and I both have copies of Civ2 and my CD got destroyed somehow then it might be fair use to make a copy of your CD. The last time I checked though most file sharing networks don't operate on this one to one principle -- they share the files with anybody who is interested in them. I'd really like to hear the brain trust at Harvard explain how that's fair use.

Sounds to me like the defendant needs a better legal strategy. Failing that, perhaps he should have his Harvard team start studying up on Title 11, Chapter 7 of the US Code. He might need it soon......

Re:Seriously, what the hell? (1)

rs79 (71822) | more than 4 years ago | (#28846783)

On the other hand, everybody shares music and sales haven't been devastated. You can't make illegal something everyone does, a mere vote fixes that.

I agree with Neeson that, circa 2010, sharing music is "fair use" under the ideals that is supposed to engender.

As a society we want to reward creativity, not encourage regulatory cartels.

Nesson Screwed His Client (2, Insightful)

maz2331 (1104901) | more than 4 years ago | (#28846823)

Pure and simple, Nesson has totally screwed over his client in a big way here. I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.

Unless he's just using the case to advance an agenda and will pay the judgement out of his own pocket, that is. In which case, fine, Tannembaum is just a proxy for Nesson to have standing to argue in court.

But if he chunks this case and leaves the defendant holding the bag, he's lower than even the lowest bottom-sucker.

Re:Seriously, what the hell? (1)

NeutronCowboy (896098) | more than 4 years ago | (#28846829)

Uh, what do you suggest the rational means would be?

1) Pass a new law. Let's see, a congress critter goes for... however much Disney is willing to pay, +$1.
2) ??
3) Profit. Or jail. Or something like that.

Sorry, in this case, the rational mean is vastly outgunned by specific corporate interests.

What defense would you suggest that goes beyond a plea-bargain? How do you propose to work with a system that is so completely balanced in favor of corporate copyright holders?

Sometimes, it does take an act of rebellion to set things right.

Re:Seriously, what the hell? (0)

Anonymous Coward | more than 4 years ago | (#28846847)

This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.

Sounds like the EFF.

Re:Seriously, what the hell? (1)

paulsnx2 (453081) | more than 4 years ago | (#28846909)

You claim "There's no 'fiar use' here", but in fact fair use is defined in the law. Section 107 of the copyright law (title 17, U. S. Code) states that Fair Use sets out four factors by which use might be considered fair (with no quotes).

                  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
                  2. The nature of the copyrighted work
                  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
                  4. The effect of the use upon the potential market for, or value of, the copyrighted work

None of these factors have been extensively examined that I know of. The fourth factor is rather critical in this case, and I am not aware of any serious research that would suggest the value of music has suffered by file sharing. In fact, quite a bit of evidence to the contrary exists. If none of this evidence was submitted by Neeson, then this is his own fault.

Re:Seriously, what the hell? (0)

Anonymous Coward | more than 4 years ago | (#28846939)

This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on.

So why not let the jury do the ruling as they are supposed to? The judge really shouldn't be ruling on much of anything at this stage.

Is the defendent screwed? (3, Interesting)

ammorais (1585589) | more than 4 years ago | (#28846347)

Seems to me like this is one more case of defense blowing up the chances of success on the case.
Isn't the defendant totally screwed since he already admitted guilt. If so, how can the defense allow the case to be lost before trial.

Re:Is the defendent screwed? (2, Interesting)

ammorais (1585589) | more than 4 years ago | (#28846397)

Troll. WTF? What is troll about my comment???

Re:Is the defendent screwed? (1)

Foobar of Borg (690622) | more than 4 years ago | (#28846485)

Troll. WTF? What is troll about my comment???

Someone disagreed with you, so they modded you troll. Or, to use a slashdot meme (and looking at your UID): You must be new here.

Re:Is the defendent screwed? (1)

ammorais (1585589) | more than 4 years ago | (#28846537)

Yes. I'm relatively new. Seems now that my last post was useless. But I'm learning.

Re:Is the defendent screwed? (0)

Anonymous Coward | more than 4 years ago | (#28846539)

Troll. WTF? What is troll about my comment???

This is the troll part.

Re:Is the defendent screwed? (1)

TheRealMindChild (743925) | more than 4 years ago | (#28846627)

Isn't the defendant totally screwed since he already admitted guilt

No, but it leaves lesser directions to go if it fails. Think "Yes I did shoot him! But I was defending myself!"

Saw this coming (2, Insightful)

Anonymous Coward | more than 4 years ago | (#28846349)

What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers. I certainly don't support the RIAA in their war on file sharing, and 1.92M is absurd, but this was a weak defense from the outset. I hope they come up with something better. Its frustrating to watch a fight in which both sides are using only the most inapplicable and irrational arguments available.

Only option left (4, Interesting)

jmorris42 (1458) | more than 4 years ago | (#28846353)

The **AAs have gone for the nuke option so the defense should as well. Toss the lawyers (they would risk disbarment) and go for a Jury Nullification. At this point there isn't much to lose, play the trial out by the book from here and the conclusion is predetermined. But if the defense goes for a nullification there is a very non-zero chance of pulling it off. Or getting a mistrial declared.

Re:Only option left (2, Informative)

Anonymous Coward | more than 4 years ago | (#28846403)

Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy). It's a lose-lose strategy.

Re:Only option left (0)

Anonymous Coward | more than 4 years ago | (#28846589)

Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy). It's a lose-lose strategy.

A mistrial is not a loss for the defendant.

Re:Only option left (0)

Anonymous Coward | more than 4 years ago | (#28846811)

Judges often go so far as to instruct the Jury: "You cannot disagree with the law. You can only determine whether or not it was broken."

Some Judges go a step further and make all the selected jurors swear an oath that they will not disagree with the law. That is exactly what happened to me when I served jury duty (well, almost served, as I was the prosecuting attorney's first pass...and not by my intentional doing....I never mentioned jury nullification, nor played any of those tricks that lazy bastards play to weasel out of the greatest amount of political power they will ever have in their lives).

In theory, anything you say in the deliberation room is protected speech. So, if you talk the other jurors into jury nullification, that should be ok. Except that jurors can and have been tossed in jail for doing just that. They were eventually released on arguments of the deliberation room speech being protected, but there was no restitution made.

The bottom line seems to be this: judges hate juries. They want to rob a jury of as much power as possible, while still putting the appearance of moral responsibility for the final decision upon them.

Not that I can really blame them. Most juries are carefully selected to be the stupidest out of the lot. If I were a judge (presumably well educated, experienced in the law, and capable of abstract thought) I would hate juries too. Being bound to the will of the lowest-common-denominator has GOT to be frustrating.

Re:Only option left (3, Informative)

NeutronCowboy (896098) | more than 4 years ago | (#28846845)

If a juror even mentions jury nullification, they'll be off the bench in no time flat. Stop getting legal advice from pamphlets.

Bitching and moaning. (4, Insightful)

jellomizer (103300) | more than 4 years ago | (#28846355)

Sometimes the Judge needs to set the bar at a different level. Even if it is not in our sides favor. Fair Use Defense is very loose set of rules with a huge gray area, and would really need a higher court to mark such lines. And the Time and effort to prove fair use would be long and laborious and only give a small advantage to the case. We really need to debate more concrete issues. If we loose then we can try for a higher court. Who may be more willing to attempt to draw the fair use line. However if that line is drawn it may not be to our favor as well.

Several Readers? What about NewYorkCountryLawyer? (5, Funny)

johncadengo (940343) | more than 4 years ago | (#28846377)

Where is NewYorkCountryLawyer when you need him?

I don't know what to believe without NewYorkCountryLawyer weighing in his opinion!

Re:Several Readers? What about NewYorkCountryLawye (4, Funny)

hedwards (940851) | more than 4 years ago | (#28846491)

He's here. He just modded you funny.

Re:Several Readers? What about NewYorkCountryLawye (4, Funny)

TheRealMindChild (743925) | more than 4 years ago | (#28846661)

NewYorkCountryLawyer is a myth. He is a memory of an uncle's best friend's dog that pulled you from the Hoboken BBQ blaze of '84. You have manifested him in your mind as is the savior for all.

I hate to break the news, but we are all screwed.

There's an answer to this... (4, Insightful)

Svartalf (2997) | more than 4 years ago | (#28846383)

...don't use their stuff.

Seriously. If you don't like what you're seeing. Don't buy it. Don't share it.

Hell...don't listen to it wherever possible.

There's enough cool music from indies that have no connections whatsoever with RIAA that you can satisfy your musical tastes in most cases without making deals with the devil.

If you do that, they won't have your money.
If you do that, they won't have a leg to stand on to come after you.

Opt.
Out.

You're customers, not consumers- and if you don't like what you're seeing, you need to stop buying. If you're not buying and using, you're consuming, but not paying- which is playing the game wholly by their rules and you will eventually lose.

Re:There's an answer to this... (0)

Anonymous Coward | more than 4 years ago | (#28846421)

But... but... but the new Lady Gaga comes out next Tuesday! I'll boycott the RIAA after then, I promise.

Re:There's an answer to this... (1)

hedwards (940851) | more than 4 years ago | (#28846507)

So, you're one of those pirates that destroys the industry by not handing over the prote... er not buying CDs. How are they supposed to stay in business with you refusing to pay for their poorly recorded garbage?

Re:There's an answer to this... (1)

Svartalf (2997) | more than 4 years ago | (#28846663)

The funny thing is, they're not.

Re:There's an answer to this... (3, Interesting)

admiralcapacitor (1315149) | more than 4 years ago | (#28846543)

Problem with this is they are trying to get laws passed so that no matter what you listen to, they will get some amount of money.

Re:There's an answer to this... (1)

Svartalf (2997) | more than 4 years ago | (#28846641)

And if they do, I'll be fighting the passing of those laws and fighting the removal thereof.

They're not entitled to money from me if I don't buy/consume their crap. Unless the laws in question allow me to consume ANYTHING from them without any further interference, what basis would they have for collecting that money from me? Potential piracy? Uh...I don't see how that would stick.

Re:There's an answer to this... (1)

russotto (537200) | more than 4 years ago | (#28846797)

And if they do, I'll be fighting the passing of those laws and fighting the removal thereof.

You and Don Quixote, Esq. With equal success.

Re:There's an answer to this... (0)

Anonymous Coward | more than 4 years ago | (#28846801)

They'll just blame their problems on pirates even more *shrug*

Re:There's an answer to this... (3, Insightful)

Darkness404 (1287218) | more than 4 years ago | (#28846865)

The problem is, the RIAA executives are so screwed up in the head that -any- drop in profits means "ZOMG PIRATES!!!!1!1!11" they don't think rationally. Any drop in profits to them is always caused by "pirates" not that the song was crap, that people are boycotting the RIAA, etc. its always "pirates" to them. So while its good and all to boycott them, thinking its going to make a change is quite idealist and won't make a drop of difference in the world really, but keep trying.

Bingo... we have a winner.. (1, Insightful)

SuperCharlie (1068072) | more than 4 years ago | (#28846887)

This is the only way to end it. Walk away. Just freakin walk the F away. You don't need the Jonas Brothers latest POS, you don't need Brittany Spears latest wtf.. If you do, pay the money and take your beatings and stop whining about stealing the dam stuff and getting caught.

There will never be a law change where you can steal someones work, distribute it to the world and not face repercussions unless it is specifically allowed by the owner.

Maybe a jillion dollars a song is too much to pay for the infraction..ok.. but none-the-less it will always be wrong and there is no other answer.

Get it into your head that as long as you consume this mess you feed these bastards and the system that supports it.

Maybe the law is wrong then (3, Insightful)

pembo13 (770295) | more than 4 years ago | (#28846387)

If

the proposed defense would be "so broad it would swallow the copyright protections that Congress has created

then maybe the law, written by mortals, is wrong. It's not like the defense goes against the laws of nature and can't possibly be right.

Re:Maybe the law is wrong then (5, Interesting)

benjamindees (441808) | more than 4 years ago | (#28846817)

Lawyers (and judges) these days have literally zero concept of a law being "wrong". They are trained and selected through years of education to bring cases to an equitable resolution. No party actually wins or loses. They settle. The lawyers win.

They have evolved to this point through natural selection and their own best interests.

Laws are no longer scrutinized for logical consistency or correctness or even adherence to any type of higher law. They are merely accepted as the will of the legislature and added to the growing pile of regulations to be forced on the plebes.

The old stereotypes of Perry Mason or Matlock getting at the truth of a legal question are long gone. There is no more truth. There is only a vast gray area in which to bring both parties to some type of agreement. And if they can't agree, well then just rig the system by disallowing any argument that might lead to resolution of the conflict at hand.

Listen to this judge. Even allowing the defendant to utter such a phrase as "fair use" to a jury would be somehow unfair to the Congress, who after all worked very hard to try to make a fair Copyright law. We wouldn't want to offend them with the possibility that twelve citizens might find their laws to be fundamentally flawed, through anything resembling a fair trial or due process or anything.

Our latest Supreme Court nominee didn't even like Perry Mason. She preferred the prosecutor who continually brought half-assed wrongful prosecutions of innocent citizens before the court and lost every week. She probably felt sorry for him. She probably went into law in order to bring some equity to the system, and give him a chance to win more often. Surely the fact that he lost every time meant that there was some inherent flaw in the system, right? Wasn't he being discriminated against somehow?

Right now I'm thinking... (1)

FunPika (1551249) | more than 4 years ago | (#28846581)

Tenenbaum will lose and be forced to pay even more than Jammie.

Grounds for appeal? (1)

danaris (525051) | more than 4 years ago | (#28846605)

Forgive me for having learned all I know about our criminal justice system from Law & Order (and similar), but wouldn't this be absolutely perfect grounds for appeal? Instructions/rulings from the judge that fly in the face of established precedent, common sense, and possibly even black-letter law...my understanding was that this sort of thing is exactly the stuff that gets verdicts overturned on appeal, which judges don't like...

Is Mr. Beckerman around to give us some insight into this...?

Dan Aris

WOWzers (0)

Anonymous Coward | more than 4 years ago | (#28846701)

I guess when it comes to big corporations laws do not apply to the little man....

New defense strategy (2, Funny)

russotto (537200) | more than 4 years ago | (#28846827)

The opening arguments from the defense will now consist of defense counsel singing "I've Been Working on the Railroad".

A foolish defense (5, Insightful)

Ammin (1012579) | more than 4 years ago | (#28846851)

Disproportionate statutory damages is the only reasonable defense; as others have pointed out, the RIAA gains ridiculous leverage because merely leaving a song upon eMule subjects you to thousands of dollars in phantom damages. Even if you ARE innocent, the risk/reward ratio allows the record mafia to shake you down simply because no one can risk the damages from losing.

Of course, the other obvious approach is to have Congress rewrite the statute to properly differentiate between a bootlegging operation with thousands of dollars in profit with counterfeit DVDs and some poor schmuck trying to get a few Mp3s.

He is guilty, he admited, but... (3, Informative)

Anonymous Coward | more than 4 years ago | (#28846879)

The problem is the punishment they are applying... if it's 1.920.000 USD then in my opinion it's way too much. I am not a lawyer but let's do some math:
- punishment -> 1 920 000 USD
- yearly income of this guy -> 60 000 USD (a supposition)
- working to pay the punishment 32 years!!!

so... to pay a 1 920 000 USD punishment in his case is an equivalent of being condemned for a working camp for 32 years... well not exactly working camp but I guess you get my point. So is it really fair? They should be defending this guy for a fair punishment and not this inflated bullshit RIAA is trying get him into.

My 2 cents.

Good for him (4, Informative)

larry bagina (561269) | more than 4 years ago | (#28846915)

Wikipedia lists 4 criteria in deciding fair use:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

I know /. likes to think redistributing mp3s is fair use since it's lossy compression and people wouldn't have bought the song anyway, but that's a very tortured explanation and out of touch with reality.

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