"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.)
"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?
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.
See my response earlier on explaining relationship in connection with the litigations between RIAA and the record companies.
By the way, the RIAA is now taking over the collection cases in its own name.
See, e.g. RIAA v. Buckley
The RIAA is actually filing the cases, although the named plaintiffs are the record companies. It would be more accurate to name the big 4 record companies as the plaintiffs, but I write so much on this I use "RIAA" as shorthand. Sorry. You are correct that invective should be directed at EMI, UMG, Warner Bros, & SONY. But I think the RIAA also deserves invective for allowing itself to be used as a front for this brutal campaign.
let's give him a chance. The 2 guys he appointed to the 2nd and 3rd slots in the DOJ will be recused from dealing with any RIAA issues, and the jobs to which he appointed them are not copyright related jobs or policy making jobs. All he's done is appoint a law school classmate to a high legal position, and that classmate's partner to the position directly under him.
Bear in mind that the person he appointed to the FCC chairmanship is a strong advocate of net neutrality, something that is anathema to the content cartel.
This President shows every sign of being a strong leader, rather than a puppet of others, so let's see what he does, rather than judge him by the identities of the underlings with whom he surrounds himself. If he is a strong leader, he will tell them what to do, not the other way around.
I promise you, if he does anything that looks untoward, I'll be the first to jump all over him (unless of course Mr. Masnick beats me to the punch).
But for now, I say the jury's still out on President Obama in terms of what type of leadership he will show in dealing with the content cartel.
"This is where the rubber meets the road, Obama gets the either reaffirm just who his constituents are or betray them. He can back unconstitutional penalties or reject them and the DOJ's actions WILL be seen as his.
"the RIAA was the first party they went to after swearing him in"
That was an incorrect report on my part. My daughter had called to let me know that the RIAA was hosting one of the "inaugural balls". I assumed that the Obamas were present at the "inaugural balls". I later learned that it wasn't really an "inaugural ball" at all, it was just a party, and that the Obamas did NOT attend. They only attended the official "inaugural balls".
I corrected the report on my blog but of course couldn't send the correction to everybody who'd heard my incorrect report. Sorry about that.
"But I'm not worried.
Remember this is Government, and Government's larger role is focused on service delivery to the people. In my mind this is what education, security, health care, infrastructure are all about. These remain services that can't be facilitated by private interests, and only government can deliver.
A person would believe that good Government doesn't permit or stand for windfalls which will distort long term plans and create bigger problems down the road. What this requires is private interests own and solve their own problems, and focus more upon innovating their business to satisfy the customer needs, absent of government or legalistic intervention.
Sure, Business crisis are at the forefront right now. But they're all experiencing the same birthing pains. It's just that ours is such a visible and noisy one, and thanks to people like Mike, it seems to be the only one. DoJ is going to have a lot to mop up after the past 8 years of Bush.
Whether it's a local medical/fire emergency or a national economic crisis; we want a "firehouse" whether a real brick and mortar one, or a virtual one like the US Treasury or Justice Department to be able to intervene in the emergency and hopefully mitigate the damage, while also gauging social impact. That's the reality that has been brought home for everyone.
Hopefully these folks realize this, and will focus on their service to The Country, not their previous employers. If not, it will be a short 4 years."
I have one thing to say.
I sure hope you're right.
Based on everything I learned in grade school, high school, college, and law school... you are.
Based on what I read in the papers... I'm not so sure.
Judge Karas agreed with Ms. Barker that the RIAA's 'making available' claim failed to state a claim for relief, and dismissed it, so I am not sure how you get to saying he "decided against her in interpreting the whole "making available" thing".
Yes he gave the RIAA an opportunity to re-plead, and he did suggest a theory the RIAA might want to try in its amended complaint.
But that's a far cry from deciding against Ms. Barker. He squarely decided the "making available" issue in favor of Ms. Barker and against the RIAA.
No one knows what Judge Karas intended by the new theory he suggested -- "offering to distribute for purposes of distribution" -- since (a) there is no such theory in the casebooks, and (b) the Judge was silent as to what the RIAA would have to prove in order to establish (i) an offer, or (ii) an intention of it being redistributed by the person to whom it was 'offered'.
1. No one can appeal from anything yet; there hasn't been a judgment entered. In federal practice you can't normally appeal until there's a judgment.
2. A lie by a witness would not constitute grounds for an appeal. A subsequent admission by the witness that she lied on the stand might constitute grounds for a motion to set aside the verdict. Jennifer Pariser hasn't admitted that she lied, at least not as far as I am aware. It was Cary Sherman who said that Jennifer Pariser "misspoke". If I were a prosecutor in Minnesota I'd be investigating the matter.
As a veteran commercial litigator, my experience is that litigation increases when business decreases. When companies are making money, they are not interested in litigation. Their interest turns to litigation when their business is hurting.
Companies that have successful business models, who find their copyrights infringed, are more interested in getting cease and desist agreements than they are in tying up time and resources in court cases that do not need to be brought.