No Surprise Here: PFF Blasts Jammie Thomas Judge For His Mistrial Call

from the shocking dept

We've written plenty of times about the so-called "think tank" the Progress & Freedom Foundation. The group, which has called itself a "free market" think tank appears to be anything but free market when it comes to intellectual property issues. For years, it's been a huge supporter of increasingly strengthening gov't granted monopolies, often resorting to highly questionable arguments, such as suggesting that fair use harms innovation and that the DMCA shouldn't be changed because that would be gov't meddling in the free market -- ignoring, of course, that the DMCA itself is actually meddling in the free market. For years, the face of PFF's twisted claims on copyright was Patrick Ross, who then moved on to become a lobbyist for the entertainment industry (basically cementing what he was already doing at PFF with a more direct relationship). We thought it would be difficult to find someone who could twist arguments quite as much as Ross did, but PFF surprised us and went one step further.

It hired Tom Sydnor, who made quite a splash by writing one of the most ridiculous attack dog papers we've seen, taking a bunch of Larry Lessig comments completely out of context to accuse him of being a communist sympathizer. It was pure McCarthyism. The worst was when a variety of others pointed out Sydnor's out of context comments and put them back in context -- and Sydnor still stood by the paper, refusing to admit he took a single comment out of context. The truth was that it was difficult to find a single comment that was accurately portrayed.

Based on this, I tend to be immediately extra skeptical of anything that comes out of PFF (Adam Thierer's work is usually good, but that seems the exception). Sydnor's latest is an attack on the judge in the Jammie Thomas trial for declaring a mistrial in her case for wrongly instructing the jury that simply making a file available should be considered infringement. As the judge realized (correctly, in our opinion, and the opinion of plenty of legal experts) this was a "manifest error of law." For copyright infringement to occur a copy needs to be made. Simply making something available is not making an infringing copy. In typical Sydnor fashion, not only does he claim that the judge was wrong, he makes the judge out to be totally off the reservation in making such a ruling, claiming that the judge "misread or disobeyed precedents, federal treaties, scholarly reviews and the three branches of government."

Sydnor, of course, conveniently ignores pretty much everything on the other side, including precedents, scholarly reviews and the three branches of government (not international treaties for the most part, since the relevant ones have all been written by the legacy industry -- so indeed, they agree with Sydnor's assessment, but that's hardly compelling). The fact is that there have been folks who have weighed in on both sides, and there have been widespread legal rulings on both sides of the "making available" issue, as well as scholarly reviews. In fact, William Patry, a much more widely recognized and respected copyright expert than Sydnor, has written extensively on the issue, and seems to disagree with what Sydnor repeatedly claims is "inarguable."

More importantly, the recent trend has been quite clear: most of the courts recently taking up the issue have realized how little sense it is to accuse someone of copyright infringement when no copy has been shown to have been made. There are some exceptions, certainly, but most of the cases these days seem to be going against Sydnor's interpretation, which hardly makes it "inarguable" or as crazy as the paper makes out. Sydnor's decision to take some comments out of context, and then ignore the weight of the arguments on the other side, in order to paint the judge in this case as some sort of clueless rogue, is, tragically, fitting with PFF's reputation for throwing truth, reason and logic out the window in order to support the entertainment industry's position at all costs.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, jammie thomas, making available, mistrial, thomas sydnor
Companies: progress and freedom foundation

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    Anonymous Coward, 18 Nov 2008 @ 6:04pm

    Could someone sue the PFF for false advertising (its name?)

    reply to this | link to this | view in thread ]

  2. identicon
    Deputy Dog, 18 Nov 2008 @ 6:19pm


    Exactly what I was thinking.
    It is fraud if they take donations under pretence. It would be ok if their name was more like "Big Media Mouthpiece" or "Fascist Fearmongering Media".

    reply to this | link to this | view in thread ]

  3. identicon
    Craig, 18 Nov 2008 @ 7:27pm

    This stuff...

    Could it be any more boring than this?

    reply to this | link to this | view in thread ]

  4. identicon
    NeoArcane, 19 Nov 2008 @ 7:18am

    Making Available

    ok.. let's play with "Making Available" for a minute here...

    EVERY music store in the world places CDs on shelves. By this very act, they are making them available for shoplifting, are they not?

    If the music stores "Making Available for shoplifting" is not a crime - but the act of shoplifting is a crime, and the shoplifter is the one who commits the crime - then "Making Available for copying" with no proof of anyone "shoplifting" a copy isn't a crime either. Making that copy is the crime.. same as stealing the CD from the store would be... but then again, those downloaders are just too hard to find.

    Hmmm... maybe the RIAA could send its same un-licensed investigators out to malls to see what stores they can successfully steal from, and then they could sue those stores under their "Making Available" semi-legal framework.

    reply to this | link to this | view in thread ]

  5. identicon
    Paula Product, 19 Nov 2008 @ 9:13am

    Sydnor is an idiot. I don't write that merely because I disagree with his conclusion (although I do), but because his "white paper" is so poorly written that a reasonably well-informed and well-educated reader can't make out what the %&%()& his argument actually is. I write that because, having read a number of his pieces, and having heard him speak in person, I have yet to hear him express a coherent, cogent argument about anything. He was a laughingstock among his colleagues at the USPTO, and he continues to make one of himself at PFF. (Indeed, as Mike points out, Sydnor does make his predecessor, Patrick Ross, sound like a scholar by comparison -- and that really takes some doing.) Perhaps the best thing we can do is simply ignore Sydnor, and maybe he'll go away.

    reply to this | link to this | view in thread ]

  6. identicon
    Fuchsia, 20 Nov 2008 @ 2:31am

    Can someone help me out here, I’m a bit confused as to the particulars of American law and the interpretation of “making available”. Surely copyright in the US is not infringed solely through the creation of a copy, i.e. the infringement of the author’s reproduction right. Rightholders have a well-stocked arsenal including the communication right, the public performance right, broadcasting and the making available right. According to art 8 of the WIPO Copyright Treaty, “authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.” How does this square with the judges decision to grant a mistrial in the Thomas case?

    reply to this | link to this | view in thread ]

  7. identicon
    Sys Admn, 1 Dec 2008 @ 8:46am

    Making Available

    Hope no one finds out that the local library is "making available" tens of thousands of musical recordings and thousands of video recordings. The main branch has 25,000 visitors a week - that can only be because the library is helping them steal.

    reply to this | link to this | view in thread ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)


Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.