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Court Says Fair Use May Hold In Some RIAA Cases

timothy posted more than 4 years ago | from the generosity-knows-no-bounds dept.

Media 145

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

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I didn't know they could do that (2, Interesting)

plover (150551) | more than 4 years ago | (#30379536)

I didn't think a court could render an opinion if it's not on the case before it. If a future case involving "space shifting" comes before the court, will they look to this ruling as precedence, or will it be treated more like an amicus curiae brief?

Re:I didn't know they could do that (-1, Flamebait)

MooseTick (895855) | more than 4 years ago | (#30379642)

Yes

Re:I didn't know they could do that (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30379678)

No

Re:I didn't know they could do that (0, Offtopic)

FatdogHaiku (978357) | more than 4 years ago | (#30380060)

Definite Maybe.

Re:I didn't know they could do that (5, Informative)

glrotate (300695) | more than 4 years ago | (#30379688)

Courts can bloviate all they wish. You're confusing two legal concepts: The case and controversy requirement, and dicta.

A court requires an actual case with actually adverse parties.* This is the case and controversy requirement.

That said, courts can bloviate all they wish. The fancy legal term is dicta. It is not binding on any court, not even the same Court. Sometimes distinguishing between the real opinon and dicta can be tricky.

However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.

Re:I didn't know they could do that (1)

Chees0rz (1194661) | more than 4 years ago | (#30380406)

However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.

"Daddy, why did you speed up so that car couldn't pass you..."

"Well, Son. If he had pulled up behind me to indicate he wanted to pass, instead of just trying to cut around in the right lane without a blinker, and maybe if he didn't have such a bad tint job, or a sideways hat, I would have moved over and let him pass rather than block him in behind a large truck."

Re:I didn't know they could do that (4, Informative)

ral8158 (947954) | more than 4 years ago | (#30380914)

Of course, there are always exceptions. For example, Jane Roe had already given birth by the time of the ruling in Roe v. Wade, so her case was moot. The Supreme Court made a decision anyway, because it would be difficult to complete a court case during the period of a woman's pregnancy.

Re:I didn't know they could do that (5, Insightful)

sys.stdout.write (1551563) | more than 4 years ago | (#30379722)

You are correct in your statement that Article III Section 2 prevents courts from rendering advisory opinions, i.e. judgements on controversies not before the court. However, courts are free to offer opinions in dicta which can guide, but are not binding, to future cases. This is all that this was.

Re:I didn't know they could do that (2, Informative)

sys.stdout.write (1551563) | more than 4 years ago | (#30379736)

Here is the Wikipedia [wikipedia.org] entry describing this in more detail.

Re:I didn't know they could do that (1)

plover (150551) | more than 4 years ago | (#30380048)

Thank you. While I knew there had to be something, I didn't know what the legal framework was for handling this kind of stuff.

Re:I didn't know they could do that (1, Informative)

gabereiser (1662967) | more than 4 years ago | (#30379726)

Odds are a judge will look at this ruling as precedence. Most judges do as that's how "law" has evolved. Problem now is, how does Tenenbaum get an appeal?

Re:I didn't know they could do that (5, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#30379868)

Problem now is, how does Tenenbaum get an appeal?

Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.

It may wind up being the RIAA that's going to "need an appeal".

Re:I didn't know they could do that (1)

gabereiser (1662967) | more than 4 years ago | (#30380032)

i truely hope so, this case has been jaded from the start.

Re:I didn't know they could do that (2, Interesting)

mcgrew (92797) | more than 4 years ago | (#30380102)

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Re:I didn't know they could do that (5, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#30380194)

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.

If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.

And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.

If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

Re:I didn't know they could do that (1)

mcgrew (92797) | more than 4 years ago | (#30380276)

Wow, that would indeed be good news. Thank you for the explanation!

Re:I didn't know they could do that (3, Interesting)

Anonymous Coward | more than 4 years ago | (#30380474)

Just keep in mind that, while NYCL has a great deal of knowledge on these subjects, his opinions have been proven to be very optimistic in the past...

Re:I didn't know they could do that (1)

shentino (1139071) | more than 4 years ago | (#30380834)

There's no such thing as guessing too high on the greed-o-meter.

Re:I didn't know they could do that (1)

Tolkien (664315) | more than 4 years ago | (#30380640)

Where've you been? I've missed hearing about the fight for fair use!

Re:I didn't know they could do that (5, Insightful)

Theaetetus (590071) | more than 4 years ago | (#30380808)

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not. If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law. And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional. If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

Additionally, your argument that the court should limit them to $750 per work is unsupported. The statutory range of $750-30k per work is a question of fact for the jury. The judge can't overrule that within the range without evidence of clear error - he could limit the decision if it was at the $150k/work willful level, for example, or he could limit it to $200/work for innocent infringement (he can't, actually, in this case, on these facts), but he can't say "the range is right, but I'm using the lower limit". There's simply no basis for it.

No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
Incidentally, I was the one who sent you an email a month ago, discussing a paper I'm writing and asking if anyone had argued this point. I haven't found anything yet. Paper's about half done and will be done before January 4th. Any interest in reviewing it and potentially filing an Amicus Brief?

Re:I didn't know they could do that (1)

david_thornley (598059) | more than 4 years ago | (#30381184)

IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages? Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow. Downloading one song, even by an inveterate seeder, is unlikely to lose anywhere near that much sales.

It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence". Not that it would make any difference in recent cases, since I don't think a reasonable juror would find any reasonable doubt, but there are innocent people who get accused.

Re:I didn't know they could do that (5, Interesting)

Theaetetus (590071) | more than 4 years ago | (#30381940)

IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?

Yes, and no. In the copyright acts of 1790 through 1976, Congress talked about statutory damages as non-punitive - i.e. roughly proportional to the actual damages. However, in the 1976 Act and the more recent amendments and acts including the DMCA, Congress talked about the deterrent effect, particularly where software, music, and movies can be copied with a click of a button.

Under the current law, the damages are supposed to be roughly proportional - a best estimate, if you will - but also have deterrent effect, meaning they can be higher.

Add to this a crucial point which Ray and Tenenbaum's attorneys disregard in discussing damage levels as being $1.40 per work: under copyright, damages include not just the cost to the infringer of a license, but the lost profits to the copyright owner. This is explicit, even going back to the original 1790 Act - damages include not just the infringer's profits (which may be zero, as here where Tenenbaum isn't charging for copies), but also the lost sales to the owner due to the work now being widely distributed royalty-free. In the 1790 Act, statutory damages were one dollar per page - that's way more than the cost, particularly back when the entire book may cost only a few dollars.

Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow.

Treble damages aren't actually an issue. There's no explicit provision for them in the copyright act.
One important thing to note when considering the lower limit of $750 - that's "per work". So, if you make a single copy of a song, it's $750. If you upload that copy to 10 people, it's still only $750. If that copy ends up downloaded by tens of thousands of people... it's still $750. That's what the statutory damage levels are trying to do - the copyright owner doesn't have to run around and find every single person that downloaded a song or bought a copy of your illegally-reprinted book. Instead, we can just assume you made a number of copies causing about that much in damages. If you didn't, the plaintiff gets a small windfall - but if you did, the defendant is relieved of a much higher liability.

It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence".

See my discussion above - they're not actually that far out of line. As for criminal law, the copyright act does actually have a criminal provision... and this is what the RIAA is misreading:
17 USC 506 makes it a misdemeanor (meaning up to a year in jail) for willfully infringing a copyright for purposes of commercial or private financial gain; or by "making it available on a computer network". Sounds a bit familiar, huh?
Specifically, the statutory damage provisions include $200 for "innocent infringement", $750-30,000 normally, and "up to $150,000 per work for willful infringement". Now, the RIAA defined "willful" as essentially "anything not innocent", which makes that middle $750-30k range useless. And unbelievably, Tenenbaum never argued that one, or at least not well.

My argument (and the paper I'm drafting) is that the jury shouldn't have been asked to come up with a per-work damage amount of "up to $150k", but rather that they should have been presented with the $750-30k range... They likely wouldn't have picked 18k then, but something lower, which would have been more reasonable.

Re:I didn't know they could do that (0)

Anonymous Coward | more than 4 years ago | (#30381590)

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.

If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.

And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.

If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

I'm unaware of the correct legal term here; but that just seems fundamentally flawed. Eventually the RIAA could find the subsequent "abuser" of the copyright on the songs in this example, and then do they again get to sue that person for infringement that they had already been awarded for in this case.. and repeating, etc?

Ok, You stole my idea. I'm going to sue you for stealing my idea and everyone you gave/resold my idea to.. But, we're just going to arbitrarily deduce a probable number of individuals here; but we're not going to break it down to entire content (for instance, a partial share).. and then we're going to extrapolate a random number of individuals those individuals could have potentially then again shared that file to.. ... and next week we'll have them all in court suing them.. and their potential downstream guilty parties... that we already received judgement on..

Whatever.. this is all just silly.

Re:I didn't know they could do that (3, Insightful)

afidel (530433) | more than 4 years ago | (#30380268)

I would say the expressiveness of the fine is obvious on the face, maybe not from a legal perspective but certainly from a moral perspective. I've been working since I was 15 and a half years old, it's likely that I will work till I'm at least 75. In those 60 years of work I've calculated that I will make about $3M in constant dollars, which makes this award about 20% of my lifetime earnings. Does sharing a few songs justify essentially indentured servitude for 12 years?

Re:I didn't know they could do that (1)

afidel (530433) | more than 4 years ago | (#30380476)

*excessiveness of the fine /damn spell checker.

Re:I didn't know they could do that (0)

Anonymous Coward | more than 4 years ago | (#30380886)

You sure that's not expensiveness, extensiveness, extortiousness, or incensiveness? :)

Re:I didn't know they could do that (0, Troll)

keithpreston (865880) | more than 4 years ago | (#30380700)

Does sharing a few songs justify essentially indentured servitude for 12 years?

Does not sharing those songs, make you life so unbearable that you can't continue?

Re:I didn't know they could do that (3, Insightful)

xouumalperxe (815707) | more than 4 years ago | (#30380894)

"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"

Re:I didn't know they could do that (1)

keithpreston (865880) | more than 4 years ago | (#30381448)

Jaywalking can kill you. It's not a great analogy because its a law design to protect yourself. There are also many situation where jaywalking is to your advantage without risk of injury, so the punishment for subverting the law is small and often unenforced. Walking and transportation are also an essential part of life.

Sharing songs that you didn't make with the entire internet doesn't seems very essential. It really seems like you are just saying a big middle finger to the people who made those songs. It's also a very difficult to come up with a scenario in which breaking the law is justified(Abandoned or lost work?). If it is something that has no justifiable reason, the punishment being harsh seems to be a reasonable deterrent.

Re:I didn't know they could do that (1)

afidel (530433) | more than 4 years ago | (#30381730)

Here's an example that would make you just as culpable but should probably fall under fair use, creating a remix or mashup and sharing it. But the point is that no matter how little justification there is for the illegal act that does not make it ok that the punishment does not fit the crime. A basic level of fairness is a requirement for the law to work as it is a social contract not a natural law.

Re:I didn't know they could do that (1)

keithpreston (865880) | more than 4 years ago | (#30382022)

So fair use is a little different topic, how much control over derivative works a copyright owner has can be a big debate. But how many people are getting a judgment for $625,000 against someone who did a remix or mashup?

People aren't getting harsh punishments for derivative works (remix or mashups), they are getting in trouble for exactly copying an original work

I still think that the punishment weakly correlates with the crime. You shared a song with the entire internet for free. There is the small possibility that many people copied the work because of you and thus weakly correlates to lost money of the copyright owner. Because of the scale of the internet your sharing could approach $625,000 of lost revenue.

If that is too much for you, next time you share just put a logging mechanism on your sharing program. When the RIAA sues you and ask for $625,000, you can say I only have 1000 downloads, so I only should owe you $1000

Re:I didn't know they could do that (1)

sexybomber (740588) | more than 4 years ago | (#30379746)

They typically can't, but it's a question of how it was worded. If they said, "We decline to comment on whether making .mp3 copies for space-shifting constitutes fair use; it may or it may not, we're not going to decide this issue today," then that's fine.

Re:I didn't know they could do that (1)

pdabbadabba (720526) | more than 4 years ago | (#30379754)

The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.

Re:I didn't know they could do that (3, Informative)

IP_Troll (1097511) | more than 4 years ago | (#30379844)

You are confusing a number of concepts.

1. Precedence can only be set by a court higher than the court you are presently in. Even the same judge can ignore the way he ruled on an identical case. This judge was essentially outlining all the loop holes that the defense could have used but didn't, essentially outlining every way in which the defense's lawyer failed to make a convincing argument and creating a road map for lawyers who deal with a similar case in the future.

2. Amicus curiae is a brief, submitted to an appellate court, which deals with to a specific issue in a case, tailored to the facts of the present case to persuade the court to rule in favor the the amicus curiae's position. The case today is not an amicus curiae because it was not written to the facts of a case presently being decided by a court, it is about a case that happened in the past.

This case is a good road map for defendant's attorneys to learn what not to do.

Re:I didn't know they could do that (1)

rantingkitten (938138) | more than 4 years ago | (#30380030)

I wish the court would render an opinion against the retarded trend of inventing hip new names for stuff. "Space shifting"? Seriously?

Re:I didn't know they could do that (1)

harlows_monkeys (106428) | more than 4 years ago | (#30380074)

It's not precedent for at least two reasons. First, district courts are the low courts on the totem pole--there is no one below for them to set precedent for! Second, the court's writings on what might have been are what is called in legal circles "dicta". That's writings by the court that are not part of the actual legal decision or the supporting reasoning. Think of dicta as being the court giving its personal thoughts or opinions.

Sounds like the Court got it right. (3, Informative)

glrotate (300695) | more than 4 years ago | (#30379600)

Without reading the order, it sounds like the Court got it right.
I.e. the damages question is a tricky one and excessive damages are to be guarded against, attorney's fees shouldn't be a slam dunk, and Fair Use exists - however downloading whatever you feel like just to list to on your ipod isn't Fair Use.

Re:Sounds like the Court got it right. (2, Insightful)

gandhi_2 (1108023) | more than 4 years ago | (#30379676)

I don't see how this is a good thing, making file sharing and fair use synonymous.

The Court, deeply concerned by the rash of file-sharing lawsuits, the
imbalance of resources between the parties, and the upheaval of norms of behavior brought on
by the internet, did everything in its power to permit Tenenbaum to make his best case for fair
use. Over the record companies’ strenuous objection, the Court allowed the fair use defense to
be added at the eleventh hour.

Making a small clip of a copyrighted work so the work could be discussed is one thing, but at the last minute when you are loosing to cry "fair use" looks disparate and only makes fair use a future target.

Re:Sounds like the Court got it right. (1)

mcgrew (92797) | more than 4 years ago | (#30380152)

Sorry if it seems like I'm picking nits, (I do understand that you meant "losing", damned keyboards..) but did you mean desperate when you said "disparate"? Damned spell checkers, mistype a single key and the spell checker "corrects" it with the wrong word. Is that what happened? I hate it when that happens to me. And if you did indeed mean "disparate" could you explain?

Re:Sounds like the Court got it right. (0)

Anonymous Coward | more than 4 years ago | (#30380278)

lol... yes, sorry.

The act looks desperate. He is losing, and the judge gave him "disparate" treatment by letting him claim fair use at the last minute. the court however is "loosing" the judicial dogs of war on mr. tannenbaum.

Not the impression I ,got, exactly (1)

Mathinker (909784) | more than 4 years ago | (#30380480)

> at the last minute when you are loosing to cry "fair use"

My impression from reading the document was that he couldn't be "losing" at that point in the trial, because it was even before the jury was selected. My understanding is that the defense is supposed to reveal to the judge and the plaintiffs ahead of time (and visa versa) what their arguments will be so that the other side can prepare counter-arguments based on good legal research.

Unfortunately, it seems that the defense lawyer wasn't really prepared for the case and pulled this "wonderful" argument out of his, er, hat at the last possible moment. The judge disses the defense lawyer at practically every opportunity in those 38 pages. And I can understand why.

Anyway, after reading a few posters' stories here about personal bankruptcy, I'm confident that even if Joel has to go that route he'll manage to survive this and still have an almost normal life.

Re:Sounds like the Court got it right. (1, Interesting)

Taibhsear (1286214) | more than 4 years ago | (#30380120)

Downloading whatever you feel like just to list on your ipod is completely legal in the US. UPLOADING the copywritten files is illegal and infringement of copyrights. This is a very important difference that the RIAA doesn't want you to realize.

Doesn't matter (1)

Mathinker (909784) | more than 4 years ago | (#30380610)

Please give references for this interesting "fact", I'm very curious.

It actually doesn't matter, because even if you are correct, if RIAA threatens to sue you unless you pay $2K dollars, it will be cheaper, probably much cheaper, for you to pay them than to go to trial. So most people who are not wealthy cannot afford to be the "test cases" for making precedents. Frankly, I wonder whether RIAA does credit checks on the people it chooses to sue in court.

Re:Sounds like the Court got it right. (1)

keithpreston (865880) | more than 4 years ago | (#30380770)

Both are illegal, however it is pretty hard to find downloaders without doing the uploading yourself (which seems a lot like entrapment, and offering to upload your owned content for free could imply a license to download). Because of this and the fact that without uploaders there are no downloaders, most copyright owners have chosen to legally pursue uploaders.

Re:Sounds like the Court got it right. (1)

shentino (1139071) | more than 4 years ago | (#30381760)

She admitted liability, case closed.

One may as well have confessed to murder in Texas.

Mostly the court said the defense sucked (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30379624)

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.

http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars [arstechnica.com]

This isn't something that applies to all future cases.

Re:Mostly the court said the defense sucked (4, Informative)

pdabbadabba (720526) | more than 4 years ago | (#30379764)

Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.

Re:Mostly the court said the defense sucked (2, Insightful)

Znork (31774) | more than 4 years ago | (#30379876)

The court also shows a certain naivete: "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,"

As we have come to understand, copyright law is written by lobbyist organizations and entered into as treaties. 'Congress' or 'public benefit' basically does not figure into the equation.

Re:Mostly the court said the defense sucked (3, Insightful)

pdabbadabba (720526) | more than 4 years ago | (#30380016)

That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?

That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.

Re:Mostly the court said the defense sucked (1)

PRMan (959735) | more than 4 years ago | (#30380248)

Yes, because that's never happened before. http://en.wikipedia.org/wiki/Judicial_activism [wikipedia.org]

Re:Mostly the court said the defense sucked (1)

pdabbadabba (720526) | more than 4 years ago | (#30380370)

Right. And, usually, when it does happen it is widely criticized.

Re:Mostly the court said the defense sucked (0)

Anonymous Coward | more than 4 years ago | (#30380320)

The judicial has never "made up new laws" because they cannot do that. They can only interpret them and strike them down. Period. There's no such thing as "legislating from the bench" as crybaby republicans would like you to believe.

Re:Mostly the court said the defense sucked (0)

Anonymous Coward | more than 4 years ago | (#30380484)

Well, corporate personhood did take some pretty hefty distorting of the law, but that's both side with a slight republican slant who liked it, so of course it's not judicial activism ;)

Re:Mostly the court said the defense sucked (3, Insightful)

shentino (1139071) | more than 4 years ago | (#30381858)

"legislating from the bench" is actually what a common law legal system is all about.

If you're talking about a civil law system then by all means you'd be correct.

Anyone who thinks that judges don't "legislate from the bench", please study these following landmark cases:

Roe v. Wade
Marbury v. Madison
Brown v. Board of Education
etc...

These binding precedents have just as much legal force coming from the pen of a judge as they would have coming from the pen of a congress critter.

Re:Mostly the court said the defense sucked (1)

Kjella (173770) | more than 4 years ago | (#30381318)

What did you expect, seriously? A mutiny of the courts? A political jab at the election process or the parties and congressmen and senators? They are parts of the checks and balances but they couldn't rebel against the system without breaking the division of power. Courts refusing to enforce copyright law despite Congress being, at least in some form, explicitly granted the authority in the constitution would break the most fundamental rules. You might as well have the President issuing laws by decree and Congress holding trials of political opponents if you go down that path. I don't think they're more clueless about reality than most other people, in fact probably far less. But even a judge that knows he and pretty much everyone else is speeding can't very well dismiss a guy standing trial for a speeding ticket.

Re:Mostly the court said the defense sucked (1)

pitchpipe (708843) | more than 4 years ago | (#30379810)

Just call this a [painfully slow] outbreak of common sense.

Re:Mostly the court said the defense sucked (0)

CorporateSuit (1319461) | more than 4 years ago | (#30379918)

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer? Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

The focus of any court should be to give the defendant the lightest possible sentence they conscionably can. If the US shifted its focus back to that, we'd improve the state of healthcare and discipline. Barratry wouldn't be so ridiculously prevalent, and more people could do the Right Thing without worrying about vexatious litigants.

Re:Mostly the court said the defense sucked (4, Funny)

nomadic (141991) | more than 4 years ago | (#30380312)

Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

I hope that that someone will actually read the opinion rather than accept an anonymous slashdot poster summary of what it says.

Re:Mostly the court said the defense sucked (3, Informative)

TLLOTS (827806) | more than 4 years ago | (#30380356)

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer?

No, the point highlighted in the above article is that instead of making a case for specific types of fair use that might be applicable, the defendants lawyers tried to argue rather broadly that all downloading was fair use, something that the judge couldn't possibly find in favour of. In essence the judge said that they were open to certain arguments being made, but the defendant never tried to make them and instead opted for a bat-shit crazy defense coupled with irresponsible and outright illegal conduct. It's not hard to see why Tenenbaum wound up getting the judgement that he did.

since when is space shifting from CD not fair use? (4, Insightful)

bugi (8479) | more than 4 years ago | (#30379646)

I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?

Re:since when is space shifting from CD not fair u (2, Insightful)

kharchenko (303729) | more than 4 years ago | (#30379802)

Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!

Re:since when is space shifting from CD not fair u (3, Interesting)

sjames (1099) | more than 4 years ago | (#30379842)

The question of if you have the CD but rather than ripping it, you download an already ripped mp3.

Re:since when is space shifting from CD not fair u (0)

Anonymous Coward | more than 4 years ago | (#30380008)

Would would only help the defendant a tiny bit, because the major offense here isn't downloading, it's uploading.

Re:since when is space shifting from CD not fair u (1)

noidentity (188756) | more than 4 years ago | (#30380036)

If you download an already-ripped mp3 when you already own the CD and could have ripped and encoded it yourself, could your action be found fair use, yet the actions of the site who provided you the mp3 be found as infringing? I love the bizarro world of copyright infringement, where for example a bit is more than just a 1 or 0 [sooke.bc.ca] .

Re:since when is space shifting from CD not fair u (2, Interesting)

sorak (246725) | more than 4 years ago | (#30380590)

If that were found to be valid precedent, then that would mean that it was legal to download a copy of a DVD that you currently own from a foreign torrent site? I assume that you wouldn't be violating the DMCA's circumvention clause...

Re:since when is space shifting from CD not fair u (3, Interesting)

bhmit1 (2270) | more than 4 years ago | (#30381358)

As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?

But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?

There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.

Note to self: (1)

bobdotorg (598873) | more than 4 years ago | (#30379662)

Don't ever take a judge's advice and allow Charles Nesson to be my legal counsel.

Victory? (0)

TiggertheMad (556308) | more than 4 years ago | (#30379700)

Judge: "Fair use might be a justifiable defense, but we find for the platiff to the tune of $625k."

Defense Council: "YAAAAAY! Wait a flippin second..."

Re:Victory? (3, Informative)

LOLLinux (1682094) | more than 4 years ago | (#30379808)

The judge never said that fair use would be a justifiable defense for the case at hand, but that for some future case it could be a justifiable defense.

Re:Victory? (1)

Tekfactory (937086) | more than 4 years ago | (#30379866)

Like if you run out and buy all of the CDs you infringed, and then appealed the ruling to a higher court?

Its gotta cost less than $625k

Re:Victory? (0)

Anonymous Coward | more than 4 years ago | (#30380010)

How the heck would that help? Did you buy the CD's and ship them to all the people who supposedly downloaded from you? Not knowing the full facts in the case, I do know at least that he wasn't in court over "downloading" - he was in court over the whole "making available" thing (which in theory could mean that thousands or exactly one - media sentry - downloaded from him).

Re:Victory? (1)

MiniMike (234881) | more than 4 years ago | (#30380170)

More like he would have had to run out and buy CDs for all the people who downloaded the mp3s from him. Probably still less than $625k. Still not quite what they mean though.

Damages should be limited by law (2, Interesting)

ZorinLynx (31751) | more than 4 years ago | (#30379902)

It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.

It's insane that any individual can be expected to pay $625,000 unless they are wealthy.

The ability for the defendant to pay should be considered when damages are decided. Our legal system is so seriously screwed up.

Re:Damages should be limited by law (1)

cdrguru (88047) | more than 4 years ago | (#30379974)

Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

I can rip a song from a CD or a movie from a DVD and make it available to the planet for downloading. Unless I keep some kind of records, it is impossible to know how many people have subsequently downloaded it. Let's say it is shared via some P2P software for a day - not many people could have downloaded it in only 24 hours. What if it is available for a year?

The only calculation possible is a guess, and guessing doesn't work well in court. Therefore, an extremely punitive statutory damage award is made. The point of the extreme nature of it is to make it extremely unlikely that anyone will ever consider this something reasonable to do. It isn't working, mostly because enforcement is also next to impossible.

So what are they going to do? I'd say go out of business is the most likely, after a long period of fighting every way they can to avoid it. But it is inevitable that they will fail.

Re:Damages should be limited by law (0)

Anonymous Coward | more than 4 years ago | (#30380070)

Who's going out of business? The music companies are still producing music and making money. The law firms are still collecting in lawyer fees.

Nobody is losing money that can't simply be solved by cutting excess in either artist contracts or staff.

Really, nothing is going to change without some interest group motivation.

Re:Damages should be limited by law (0)

Anonymous Coward | more than 4 years ago | (#30380088)

5 dollars.

Re:Damages should be limited by law (1, Troll)

jedidiah (1196) | more than 4 years ago | (#30381172)

> Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

Not at all.

The relevant "art industries" have some idea of what this stuff is worth. They need to be able to evaluate value
in order to do the "business" part of art. So for ANY bit of "art" whether it is something an unsigned band or
something that already has as well established track record, the labels or the studios have some idea of what they
could be losing.

The CEO Virgin Atlantic doesn't just shake a dead chicken while dancing around in a circle mumbling.

ALL of the works have some sort of estimated value and expected annual revenue.

Simply put: the damages for a single uploader should never exceed the actual value of the work.

If music were really treated like real property then it would be taxed as such and there
would be an assessed value on it and that would be recorded with the relevant tax authority.
There would be no guesswork. The maximum potential done to "piracy" would be equal to "out
right theft" of the rights to the work in question.

It is time for this "statutory damages" nonsense to end and for the courts to deal with actual damages.

The fact that it might be "difficult" is irrelevant. These people want to directly destroy lives. They should be given no special favors when it comes to the burden of proof.

Re:Damages should be limited by law (1)

keithpreston (865880) | more than 4 years ago | (#30380054)

This doesn't make sense. Most people just file bankruptcy and don't end up paying $625,000 The monetary damages should correlate with losses, but to another point they should be a deterrent to the crime. If you were caught letting people download a DVD and only had to pay for the cost of the 1 person (the RIAA) who downloaded and sued you ($20?), everyone would pirate.

Re:Damages should be limited by law (1)

cromar (1103585) | more than 4 years ago | (#30380124)

Which just goes to show that the estimate of the damages is asinine, and that the constituents of the RIAA's methods of distributing and making profit on digital media are asinine.

Re:Damages should be limited by law (1)

keithpreston (865880) | more than 4 years ago | (#30380416)

I don't see how making a profit on digital media is asinine. That's like saying making a profit on anything is asinine. Everything should have perfect competition and we should pay just above exactly additional input costs for an additional unit. This does happen sometimes, but they call them commodities, not creative works. You have to realize that without Copyright, Patents and other methods of control distribution of Creativity are the only way to encourage Creativity. Do you like your Ipod, Intel Processor, GPS, Collected Data(Maps), etc? Without control methods there is no incentive for initial investment to create, and the only things that will be made are commodities. Apple would not spend X million dollars to create the iphone if they knew that once they started selling it a "copy" company would build the same products using the same chips and Apple's software and sell it just above the costs of parts. Digital media is just an extreme example of this because the cost of selling another unit is negligible.

I really hate the argument, well they can make money off the tours and other stuff. Who to say a better performer can't steal your well written song? What's to stop another band from imitating your sound and throwing a tour that happens to play in every city you do and the same time, but at 1/4 the price for admission? What if someone else sold merchandise of your band?

If you don't agree with their system, don't participate in it. Don't subvert laws and break the system and then call the punishment stupid. If anything the best way to break a system, or someone abusing it to make absurd profit is to support their competitors!

Re:Damages should be limited by law (1, Insightful)

maxume (22995) | more than 4 years ago | (#30380676)

How sure are you that Intel needs government enforcement to protect their products?

They operate the most sophisticated factories in the world, producing some of the most complicated objects in existence, I'm not real sure they need to worry about some guy in his garage trivially duplicating their chips. Not to mention that they consistently offer a certain level of quality.

Re:Damages should be limited by law (2, Interesting)

keithpreston (865880) | more than 4 years ago | (#30381138)

How sure are you that Intel needs government enforcement to protect their products?

>

Yes they absolutely do! Trust me the difference between the cost Intel pays for each chip and what you pay is padded with a huge profit and initial investment recoup cost. Copying the design wouldn't be very difficult. There are many methods. Electron Microscope to reverse engineer, paying an insider to give you trade secrets, stealing key employees with intimate knowledge of design. Even if they were 6 months behind technology wise, an x86 compatible computer that ran at 75% of Intel speed for $50-100 would crush Intel's market

Because of the current system, you almost never see Big Corporations subvert the Copyright system because they know they will get sued out of existence. Why worry about the guy in the garage? For the most point it has been ignored, however, the internet has made it so that the guy in a garage can do a lot of damage with little resources. However this doesn't mean we can throw out the copyright system, we just have to start enforcing it equally on everyone.

Re:Damages should be limited by law (1)

maxume (22995) | more than 4 years ago | (#30381218)

You still need a reasonably similar fab and quality engineering, it isn't just a matter of taking 'the plans' and copying them, and the idea that someone is going to reverse several hundred million transistors with an electron microscope has basically zero credibility (and Intel ships chips that run at "75% of Intel speed" for $50-$100, at least to the extent that the statement even has meaning, they just don't make them on their most modern processes. For example: http://www.newegg.com/Product/Product.aspx?Item=N82E16819116091 [newegg.com] ).

Re:Damages should be limited by law (1)

keithpreston (865880) | more than 4 years ago | (#30381672)

Let me clarify.

There are many other Fabs and quality engineering other then intel. I don't think it's a stretch to say that without the burden of copyright one of these other fabs could easy mimic if not straight up copy an intel processor and sell it for a lot less then the cost that intel does. Intel is making a tidy profit, because their competition is low, and there are no new entrants into the x86 market because of copyright and patents

Cost structure is very important, let's take for example a normal cheap PC these days that cost $300. If we looked at all the components in that PC and evaluated them for the raw costs to produce that extra component (with no upfront development costs), I would guess that the PC has about $50-$100 dollar of costs if not less. With no copyright system enforced by the goverment, I propose that we would see intel go out of business because they would never recoup their billion dollar investment in there processor when others copy and sell it just above raw costs.

In fact I would say that a majority of copyrighted material would not be made, because the payback period becomes (profit margin) / (time it takes to copy the item) versus (profit margin) / (time of copyright), This is especially bad for digital media creators because copying is available immediately.

Re:Damages should be limited by law (0)

cromar (1103585) | more than 4 years ago | (#30380778)

Ha! I can see you agree in stronger copyright laws than I do, but only marginally. I have no problem with making a profit off of one's own work and having it protected for a reasonable amount of time. It betters society. What is wrong is not that they are making a profit selling digital media. What is wrong is that their methods for making that profit are asinine, harmful to artists, and harmful to society.

Another thing, for the most part artists are only making money from tours and promotional material if they sign with a major label. In most cases, the artist is paying labels to promote them, because, until recently, that was the only way to promote your music. That has changed, thank God. So I am not only promoting subversion. I am promoting the death of the old mafia labels, and subversion is valuable tool toward that noble goal. Building the infrastructure to support independent artists is well underway and growing at remarkable rate really, but the iron fist of Old Media is still very dangerous and I wouldn't be surprised if they have more tricks up their sleeves, tricks they will use to try to maintain their anti-competitive stranglehold on media and others' creative works.

You can't sing the "Happy Birthyday" song in public for crissakes. Their stranglehold on creative works is unnatural, a product of naivety toward recorded media. It's time we went back to a sane attitude toward creative works, like we have had for thousands of years before our current copyright laws regarding recorded/mass media began to crystallize around the turn of last century.

Re:Damages should be limited by law (2, Insightful)

keithpreston (865880) | more than 4 years ago | (#30381280)

Ha! I can see you agree in stronger copyright laws than I do, but only marginally.

Personally I believe there should be much stronger copyright laws with reasonable fair use provision for a much shorter but reasonable time period. This is the only logical conclusion I can come to. Honestly unless you are a commodity laborer, Your value to your company is the creativity and intelligence you put in your job. Trust me, if your company could steal similar creative and intelligent work for free they wouldn't be paying you. Since I contribute my works in exchange for cash, I feel like if I consume works, I should pay cash.

I do agree that the labels have a strangle hold and are abusing the system, but I choose not to cheat the system, but not to support the labels.

Re:Damages should be limited by law (1)

cromar (1103585) | more than 4 years ago | (#30381354)

I feel like your missing my point, because you're looking for an argument :) The only thing we disagree about is that it is wrong to cheat a corrupt system. I'm a firm believer that two wrongs can make a right. Anyway, I don't pirate music and I pay for independent creative works, so I'm not sure what you are trying to say... that doesn't make the monetary damages they come up with any less asinine, and it doesn't make their attempts to save a failed business model any less asinine.

Re:Damages should be limited by law (1)

keithpreston (865880) | more than 4 years ago | (#30381846)

Yes I don't think we can agree on that. Two wrongs don't make a right in my book. To a point I can agree with cheating a corrupt system, the problem with the copyright system is how do you draw up who is corrupt? There are people that don't abuse the copyright system, can we still steal from them? I personally just try and avoid the corrupt ones and deal as often as possible with those not abusing the system.

If a law is justified, and there aren't cases were breaking the law is justified, I don't see how a harsh punishment is bad. If it is something you shouldn't be doing, easy to know if you are doing and you willfully do it, you should be punished accordingly.

It's more of a matter of difficulty in detection. Consider a crime that is easy to commit, can be commit very often, has very non-obvious or long-term outcomes, and is very hard to detect. How do you stop such a crime? There really isn't anyway to stop such a crime, the only way to prevent it is to get people to agree that the crime is bad and not to do it, or fear the punishment. Harsh punishments work well in the situation.

Re:Damages should be limited by law (0)

Anonymous Coward | more than 4 years ago | (#30380128)

I thought you couldn't get out of judgements via bankruptcy?

Re:Damages should be limited by law (1)

SheepFister (1638801) | more than 4 years ago | (#30380168)

Agreed. Furthermore, how can anyone in their right mind say that $22,500 per song is a fair amount? I had to have seen this before... can someone link me to an article explaining it? The Making Available excuse doesn't seem like it would be enough... and would the fine be different if a user disabled uploading? Would it then just be cut and dry theft, with a fine less astronomical? There's something I'm not seeing in play here...

I can't see myself paying for music through the labels anymore, they're too quick to bend us over. If more bands I like start pulling a 'Radiohead' and releasing music independently on their websites, I'd gladly pay for it. I'll still go to concerts and buy their t-shirts. But any media that has a kickback to the labels is dead to me, and I'm guessing I'm not the only one who feels this way.

Re:Damages should be limited by law (0, Troll)

mea37 (1201159) | more than 4 years ago | (#30380330)

So, you figure as long as I either avoid owning assets or hide them well, I should be allowed to do whatever I want to your assets without fear of consequence?

Interesting.

Re:Damages should be limited by law (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30380678)

Suing poor people doesn't make financial sense, so the only real way to keep them in line is to put them in jail. But there's a threshold. So a poor person is free to perform essentially any sue-able offense as long as it wouldn't land them in jail. This applies to a lesser extent for college kids who are paper poor (in actual debt usually) but have rich futures. And, of course, they actually care about their record if they ever need to bow to a corporate overlord.

Court decision (1)

thelonious (233200) | more than 4 years ago | (#30380000)

from the court decision: A word on process: The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the internet,...

They're talking about fetish porn, aren't they?

Format shifting is *probably* already legal...... (3, Interesting)

Anonymous Coward | more than 4 years ago | (#30380006)

In the USA:

Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.

Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.

Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.

The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.

The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).

A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:

1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).

Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.

Happiness (0)

cdrguru (88047) | more than 4 years ago | (#30380020)

I don't think everyone will be happy until a court rules that downloading everything that can be is "fair use", because the quality of MP3's is only "fair" and after they are downloaded you really can't use them for very much.

Re:Happiness (1)

MiniMike (234881) | more than 4 years ago | (#30380300)

Do you thus think that downloading high-bitrate MP3's should be illegal? What about ogg vorbis files? What if I download high-quality files but listen to them on a cruddy stereo? Agreed that you can't use MP3's for much- other than listening to them. Which is pretty much all the functionality they're intended to have. I also agree that everyone would like to get whatever they want for free, but I don't follow your logic. Additionally, I think a careful reading of these cases reveals that the charges are for uploading files, not downloading them. I hope this doesn't affect your happiness.

Re:Happiness (1)

jedidiah (1196) | more than 4 years ago | (#30381228)

...which is perfectly consistent with the previous 50 years of being able to get music for free.

You condition the consumer to the expectation that they can get entertainment for free then they are bound to continue thinking that.

It's just that now most any form of "broadcast" is also a "download". That's just the evolution of technology.

A song for the season (1)

dkleinsc (563838) | more than 4 years ago | (#30380226)

Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
With fair use, you may see
a chance for copyright victory.
Oh Tenenbaum, oh Tanenbaum,
your legal team is awesome.

Re:A song for the season (1)

agnosticnixie (1481609) | more than 4 years ago | (#30380524)

Nice try, cute but it doesn't scan at all.

shit!! (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#30381848)

WOOT? would li4e to have somebody just Truth, for all thing for the indecision and of programming join in especially theorists - lead developers
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