No, Amazon should not be compelled to sell something they do not want to sell, and no, they have not done something terrible by exercising their right to choose what is sold on their site. I just happen to disagree with their choice. It also is most certainly censorship - not in a universal sense, and not in the sense that they are seeking to deny anyone the right to find and access material that others may judge to be objectionable. Such a limited meaning of "censor" isn't the only way to use the word. Consider, for example, that you can choose to censor your own expression.
I do believe this policy is related to liability risk. Amazon doesn't want to get criticized and perhaps even sued by some angry parents alleging that Amazon should be liable for allowing their innocent child to be exposed to objectionable material on a site that Amazon made available to the public.
I seriously doubt Prince himself is trolling around the internet looking for supposed infringement. Almost certainly he signed a contract with a company that has promised to look out for his copyright interests so he doesn't have to personally worry with the details. The IP enforcement firm has incentive to find every miniscule scrap of music that can be attributed to their client. They must continue to keep proving their value in order to perpetuate their future paychecks.
"They don't have anyone who can validate that the content "
It should not be Amazon's responsibility to "validate" content. "Validation" in this context is just another euphemism for censorship. If Amazon is truly concerned about their inability to monitor what is being published, why can't they rely on crowd-sourced reporting of objections.
This case is an example of why I believe the concept of safe harbors ought to be extended beyond DMCA liability. There should be similar safe harbors from tort liability as well.
Maybe by dismissing the cases there will be a reduction in material damages, but even if all the claims are dismissed, there's still the fact that Prenda Law has caused a lot of time to be wasted in courtrooms which are funded and maintained by the taxpayers.
It will be interesting to see how this turns out since Dutch museums hold some of the world's most famous paintings -- think "Old Dutch Masters" such as Rembrandt, and those museums have been in the forefront of claiming copyright on images of paintings.
Que the "national heritage" claims in 3,2,1...
"In the future, expect copyright locks, wherein you cannot use the machine you're using, listen to music or drive a car without paying copyright royalties out of the ass"
That isn't the future, its the present.
Here is an example from the medical world:
Consider the most commonly used surgical robot which was developed at taxpayer expense by DARPA for battlefield use. The Army decided they didn't want it so a private company now sells the devices for millions of dollars each. The arms of this robot which are stainless steel and don't wear out not anywhere quick enough to suit the company's stockholders, are designed to detect when they enter a human body. After a certain number of passes into the body, the robot is disabled until you pay thousands so you can attach a new piece of equipment for it. The old one, which is just a usable as when you took it new out of the package is thrown away.
Now how do you think this scam is defended? By the DMCA of course. If you hacked their software to circumvent the inactivation process, you would be breaking the law.
It's a perfect example of the monumental waste and expense borne by the public as a result of IP law.
I might add that up to this point, hospitals haven't cared a bit about this kind of thing since they were just passing all of their expenses, along with a hefty markup, on to the insurance companies, or in the unlucky cases - directly to the patients. We will see how much this changes in the next few years since it remains unclear exactly how Obamacare is going to play out.
Many prosecutors are not concerned with morality. They are only concerned with legality.
Certain lawyers (such as rather average regular here) will argue that is as it should be. The problem is - as was discussed by Orin Kerr a few days ago at The Volokh Conspiracy, there's a lot of poorly written and unwise law out there creating discrepancy between legal and moral.
I am in agreement with Jay and anonymouse here. I think Ortiz's stubborn public statements will increase scrutiny of her performance as prosecutor and hopefully of the entire situation wherein overcriminalization invites prosecutorial misbehavior.
Over the past few decades, judges lost much of their discretion because of instances in which the public, and subsequently lawmakers became furious at apparent abuse of judicial discretion. The loss of discretionary power suffered by judges became a gain for prosecutors. Most unfortunately, prosecutors have not uniformly used this discretion in a wise pursuit of justice. One can only hope that there will be another redirection of our legal system in the near future.
The two memoranda above which have a little bit visible were issued by the DOJ Chief, Criminal Appellate Division, Patty Merkamp Stemler.
Couldn't this possibly be the same Patty Merkamp Stemler who was part of the Federal prosecution team held in contempt of court for failing to turn over information to the judge after being explicitly ordered to do so? That misconduct resulted in the collapse of the criminal case against Senator Ted Stevens.
It looks like the episode didn't teach DOJ attorneys anything. Maybe the lesson we should have learned is that the members of the executive branch are now so powerful that they can flout rules, ignore law and nothing happens. After all, none of the DOJ attorneys involved in the Stevens case suffered any career damage.
Ms. Merkamp Stemler even got promoted.