Comments by RayBeckerman

kudos on getting the story straight

RayBeckerman — Sat, 17 Sep 2011 13:04:31 PDT

Congratulations on getting the story right, as there are reports circulating all over the place which incorrectly suggest that the appeals court rejected Judge Gertner's decision on the due process issue.

This was no more than an application of the 'judicial restraint' & 'avoidance of constitutional question' doctrine, that a constitutional issue should not be decided unless and until its resolution becomes unavoidable.

Twitter killing the golden goose

Ray Beckerman — Mon, 14 Mar 2011 07:39:26 PDT

I agree wholeheartedly with your article. Twitter has been playing these games now, for over a year, as it struggles to "monetize", in the process killing the golden goose.

What I've been waiting for is an aggressive microblogging competitor to come along. I've been disappointed that statusnet or friendfeed hasn't stepped up more strongly.

It's about time we saw the judiciary scrutinizing this stuff carefully

Ray Beckerman — Fri, 4 Feb 2011 09:07:50 PST

For the past 6 years I've been writing about the tendency of so many judges to give the RIAA a pass, and to fail to adhere to the Federal Rules of Civil Procedure, or to legal precedent, in scrutinizing the ex parte applications. 15 neglected pressure points -- areas which judges should have been, but usually were not, scrutinizing -- were pointed out by me in my 2008 article : "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges' Journal, Summer 2008 Edition (American Bar Association, Judicial Division) (Reprinted with Permission) I'm glad to see Public Citizen being involved in this issue.

i guess i wasn't logged in

RayBeckerman — Mon, 2 Aug 2010 15:21:29 PDT

just wanted to confirm previous comment was mine

is this an April Fool's joke?

Ray Beckerman — Mon, 2 Aug 2010 15:18:57 PDT

It's August. This can't be real.

Can it?

Great article

Ray Beckerman — Tue, 15 Dec 2009 09:32:01 PST

Great article. Hope ASCAP gets its comeuppance one of these days, and I would love to be the one to give it to them.

Problem is fact we're discussing it

Ray Beckerman — Sun, 12 Jul 2009 13:46:41 PDT

The sad thing about fair use is that the way it has evolved, it creates an enormous burden on creative people, and forces the suppression of worthwhile work. The mere fact that we are debating back and forth about whether it is or is not transformative, is the problem. A creative person should be able to know ahead of time whether or not he can do it.

Projects which require insurance, such as films, are virtually prohibited from relying on fair use, because the corporate insurers will simply not accept that as a basis for utilizing the material, regardless of how "fair" the use. Either pay the big bucks for the clearances, even for fleeting references, or forget about it.

It's really unworkable, and the need for a uniform set of standards has never been greater.

By the way, IMHO... it's a slam dunk fair use. And yet, it would not surprise me if the Court puts Fairey through the enormous burden of pretrial discovery + full blown trial.

They sued her for $3.6 million

Ray Beckerman — Mon, 22 Jun 2009 08:58:28 PDT

The RIAA asked for a verdict of from $750 to $150,000. That's $3.6 million on the high end.

They could have asked for $750 to $3000, and then they would have been suing for $72,000, or for $750, in which case they would have been suing for $24,000.

But greed got the better of them.

Moby is correct.

Dilution

Ray Beckerman — Sun, 31 May 2009 15:59:23 PDT

"Almost overnight a practice that required many years of study (state, federal and international law), mentoring, etc. was supplanted by a group of "practitioners" whose only qualifications were a one semester elective in law school."

I think that may have had more to do with the internet boom than anything else.

RTFA

Ray Beckerman — Sun, 31 May 2009 15:23:46 PDT

If Anonymous Coward (2:04 PM) had actually taken the time to read the brief, he or she would know that the brief completely eviscerated, point by point, the very arguments made in this very case by the very lawyers who are in the DOJ at the moment.

There is no way for any objective reader to actually read the brief and dismissively pass it off as being based on a mere conclusion that "the administration feels there are other more pressing / important cases to put in front of the court".

Numerous points of substantive law were made, and each and every argument of the film companies was explicitly rejected on substantive grounds.

Radicalism ... Intellectual property

Ray Beckerman — Sun, 31 May 2009 11:08:09 PDT

There is no legal term, "intellectual property". It is just a term lawyers developed when referring collectively to rights someone might have under patent, trademark, copyright, and trade secret law.

I do accuse the RIAA's lawyers of "radicalism". A good lawyer does not take indefensible positions. It is "radicalism" in my book to pretend the law says something it does not, to make false representations to a court, to eschew making concessions or compromises, to do whatever one is instructed to do by one's clients, to bring ex parte proceedings when notice can be given, to conduct proceedings solely for the purposes of harassment and terror. Under that definition, I accuse the RIAA lawyers of radicalism.

Cutting Mike some slack

Ray Beckerman — Sun, 31 May 2009 09:06:53 PDT

As a practicing litigation lawyer, when I blog I blog only about actual legal issues that have been included in briefs, decisions, and other filed legal documents. I never blog about the "reform" issues, i.e. how copyright law could be improved. I just blog about what it is. In this area, I can tell you that the 'radicalism' is on the part of the RIAA and MPAA, which are trying to expand existing copyright law by fighting against defenseless people, and non-moneyed websites, and picking up garbage 'precedents' wherever they can. But you will notice that in seriously contested cases they have never prevailed on any of their ludicrous substantive copyright arguments.

Mike, unlike myself, blogs about both subjects: (a) existing copyright law, and (b) copyright reform. He also blogs about how the music industry is changing, and about how it could set up better business models.

One needs to differentiate which subject he is talking about.

From my experience, when -- as in this article -- he is talking about existing copyright law, he has really taken the trouble to educate himself and to state the law correctly.

Would the RIAA and MPAA lawyers were as careful as he to do so.

Strange headline

Ray Beckerman — Wed, 13 May 2009 13:34:35 PDT

Rather a strange headline. Why did you say "Jammie Thomas refuses to settle", as opposed to "RIAA refuses to settle"? Or better yet a neutral headline?

Lawyers' training

Ray Beckerman — Tue, 24 Mar 2009 08:46:48 PDT

Mike said:

"Many lawyers are taught (or learn from experience) to approach any legal issue by going to an extreme position...."

How I would put it:

Many [inferior] lawyers [of the type being cloned these days by large law schools and large law firms which are oriented only towards achieving large 'profits per partner'] are taught (or learn from experience) to approach any legal issue by going to an extreme position......"

Re: Re: Thoughtful analysis

Ray Beckerman — Tue, 24 Mar 2009 08:17:14 PDT

Gotcha.

Re: Re: SOP

Ray Beckerman — Mon, 23 Mar 2009 15:18:52 PDT

M. Slonecker, without regard to whether we characterize it as "siding with the RIAA" or not, would you agree with me that the Government argument goes further than it need have gone in order to defend the facial constitutionality of the statute?

SOP

Ray Beckerman — Mon, 23 Mar 2009 10:20:59 PDT

I don't know if you guys are lawyers or not, so I'll cut you some slack. Let me try to make it clear:

It would have been SOP in the traditional sense to say the statute is unexceptionable on its face, and that any question of the constitutionality as applied to this defendant should await the trial. It is not SOP for the Government to go out on a limb and, without any authority to support it, argue that it would be constitutional to assess $150,000 statutory damages where the plaintiffs' actual damage is 35 cents.

Yes making a dumbass statement like that was SOP for the Bush DOJ. I was hoping for something more professional and lawyerlike from the Obama DOJ.

As to whether this constitutes "siding" with the RIAA it certainly does; it goes way beyond defending the statute itself.

Thoughtful analysis

Ray Beckerman — Mon, 23 Mar 2009 08:31:45 PDT

Sneeje said:

"that article is less than helpful. All it does is summarize the brief--there is no thoughtful analysis as to why the brief might be taking a reasonable position. It simply states that the law allows the position."

Does every single blog post have to be full of "thoughtful analysis"? Can't it be a valid and useful blog post to give information about a significant legal event? (I hope so, because if not my blog is dead in the water; I hardly ever provide "thoughtful analysis" like Mike usually does.)

The facts

Ray Beckerman — Mon, 23 Mar 2009 08:25:29 PDT

Carl said:

"Keep in mind the most important question. What damage did Tenenbaum himself actually do? How many copies did he create? The law does not allow Tenenbaum to be punished for what other people do. Don't think it's OK to make him an example by throwing million dollar damages at him -- the law doesn't excuse that, nor does basic morality. On the other hand, if it can be shown that he was willfully flouting the law, then large damages might be reasonable. How large is reasonable? 100x actual damages? 1000x actual damages? 10000x actual damages? Until now, the largest value used is around 100x actual damages, but the RIAA and the feds are asking for far more."

You make an important point. The DOJ was right, I think, in asking the Court to defer ruling on a question the Court may never have to reach. It would be very difficult to make this kind of determination without a full evidentiary record:
-what were the plaintiffs' lost profits;
-what was the degree of reprehensibility?
-were there mitigating or aggravating factors?

Can't answer those without the facts.

What the "colloquium" omitted

Ray Beckerman — Fri, 20 Mar 2009 16:20:02 PDT

This discussion among scholars omitted all reference to all of the leading cases and legal scholarship on the issue.

Fortunately, the Free Software foundation filed an amicus brief today, bringing the omitted authorities to the attention of Judge Gertner, so at least she'll have something to read which actually discusses the last 6 years of jurisprudence on the subject.