And unfortunately, it seems like too many Congressmen can only conform their official actions to a tired red vs. blue partisan mentality. It's toxic and I advocate that we actually start voting the toxic players out with independent candidates with no alligience but to their constituents.
"The law is like math; it has an exactitude about it that is not friendly to irrational, mindless, stabbing in the dark."
This is a very silly assertion. The law is nothing of the sort.
1 + 1 = 2, 3 x 3 = 9, et cetera. There's no debating these things.
But we could spend hours, days, years, debating the proper application of a statute, the correct interpretation of a constitutional clause/amendment, what a reasonably prudent person is, or the efficacy of a judicial opinion (this is a short list of what it is to practice law). Different views on the same issue doesn't mean one is right and the rest are wrong -- more times than not there's an exception or reasonable counter-position to the prevailing rule.
. . . .
Now having said that, let me just opine on the petulant, ass-damp lawyering we're witnessing from Mr. Carreon -- it betrays minimal competency and is rife with frivolity. Maybe an exception to my assertion above, which kind of drives my original point home.
I was having a tongue-in-cheek conversation with a buddy along these lines the other day...
In the battle that pits Giant Douche vs. Turd Sandwich, when the most conspicuous difference between the two are their competing brands of dumbfuckery, I suppose I prefer the challenger. I'm fully confident that he can be just as awful, but it'd be nice to have a new guy's decisions to ridicule.
When an individual infringer is dinged with a judgment this, complete satisfaction of the award is practically impossible -- but somehow wholly reasonable according to the Executive branch and the RIAA. How can a position that will surely spawn more wasteful litigation be of any use here? Why do the labels want to keep shelling out legal fees in a fruitless endeavor to collect obscene, disproportionate, and unobtainable damage awards? To say "well, it's the law" doesn't seem to advance their interests. Insisting upon their current course is just hurting their ability to collect.
It just seems like this battle must not really be about the money. Whatever this has to do with, they are foolish to think a courtroom is their best forum for vindication.
[T]he Due Process Clause does not require that the statutory damage award be proportional to the actual harm defendant has caused the plaintiff.
This is a brand of federal claptrap that, while not really surprising anymore, makes your average American citizen justifiably nonplussed about those running our government. By this Administration's standards, if Congress passed a law allowing for $100 trillion in damages against a defendant for spitting on a property owner's lawn, Due Process is not implicated.
Symbolically, it shows that those in key government positions don't have our back. Individual interests take the backseat -- nay, trunk -- to corporate interests.
[T]hey're not actually arguing that paying $1.5 million is reasonable, perfectly or otherwise. . . . They're arguing that it's perfectly legal because a due process analysis is not applicable.
An argument like the Administration has made here doesn't even serve the labels' best interests, and is obviously a kick in the balls for the defendant. The labels' lawyers win though -- more billables.
This type of litigation hasn't had the deterrent effect that labels hoped it would, so what's the effing point of arguing that this nonsense damage award should remain intact -- a $1.5 million judgment against your average file-sharer will never be satisfied. One message these awards does convey, however, is probably not what the RIAA had in mind, i.e., that the labels are frivolously out-of-touch vindictive twats.
As you've pointed out, risk and reward are variables in the equation here...what about dignity? Shouldn't that be considered?
It's easy to get the impression that Bayer hasn't considered it, because $5K+ compared to the generic prices appear to be a gouge. And trying to thwart access, even through legal process, is at best a dubious endeavor.
Not that I don't share your sentiment that proponents of this burden-shifting scheme favor stacking the deck in their favor.
I think rigging the process is just the means to an end: that backers of this proposal feel copyright ownership needn't be proven indicates that they hell bent on eliminating anyone with the gall to compete with the legacy content distribution system.
Or put differently: if you want to join their club, you must kiss the Dodd's ring. Or just stay off his turf. Disruption will not be tolerated.
If you're taking about an "agreement to make an agreement" then it's already a pretty problematic idea, especially where material terms are vague, undisclosed, or disproportionately favoring the side with all the bargaining power. A court will not enforce a contract it determines to be unconscionable.
Not that it won't find a way to rule that an unconscionable agreement is wholly acceptable. Surely the major record labels' contract attorneys have had some success convincing judges to endorse their clients' strong-arming of naive or legally ignorant artists.
Old Guard Entertainment Cronies: Accept the fact of life that piracy is not "curable" - if you're personally troubled when your copyrighted material is infringed, INNOVATE or STFU. Don't go rent-seeking and lobby for increasingly draconian IP legislation to support a business model that is falling more out-of-sync with a digital economy.
Turn about is fair play, no?
Of course pirates don't respect your IP -- very many are still your customers, or could be, and as much as you loathe their actions, they are as equally offended (justifiably) by your aversion to a digital and consumer-friendly economy.
I'd hazard to guess that TV release groups ("thieving pirates" to some of you) don't cut beginning credits because it's just a little more of a pain in the ass to edit these out, especially considering they're often run directly over a show's beginning scenes. As for ending credits, I often find these partially if not wholly cut from the types of files about which you write.
It's not that I don't want to believe you're right (though to be clear, redacting credits from pirated TV releases does not offend me in the slightest), but my gut just tells me those credits that you see are there for WAY less altruistic reasons than you seem to believe.
A personal anecdote of why the mutually-assured-destruction-by-patent wars are silly (especially applicable to Apple's "slide-to-unlock" patent): I have an iphone, jailbroken of course, and use an android-type unlock method. But thank god Apple was able to get its patent - it gave me the opportunity to look for better software.
Trust me, if Universal, Warner, etc thought the MPAA should be sitting down with people like us to help solve their problems, they would be.
The 'AAs suck at what they do. Part of an advocate's job is not to just blindly represent his client's position, but to also advise his client on the efficacy of taking a particular stance on an issue. The 'AAs fail miserably in this regard.
Keep in mind that pleadings need only allege the prima facie case for the underlying cause of action, i.e, everything the DOJ has alleged in its complaint still must be proven to the trier of fact (judge or jury).
So it shouldn't be surprising that, just from reading the allegations, it seems Megaupload is guilty. If it read otherwise, that's a good indication the pleading may be defective. But just because the case was properly plead is not a good indicator of a defendant's guilt.
I don't think I'm ready to accept what you believe should be the obligations of an "essential facility," but for the sake of argument: what about the "essential facilities" on the pro-rights holder side of this debate . . . some of us are curious about how you characterize the 'AAs who support SOPA/PIPA: are these "essential facilities" in your view?
Assuming the affirmative, haven't they also ignored that obligation to remain unbiased, apolitical, and inclusive?
Assuming yes again, it's plainly hypocritical to chastise Google for voicing its stance on these proposed bills, wouldn't you say? It amounts to "do as we say, not as we do." Inconsistencies like this do little to advance your goal, and I'd argue it reveals Big Content's not-so-subtle strategy of winning passage via creating strawmen, spreading misleading information, etc.
Aside from all that, I'll now assume you don't characterize the Big Content SOPA/PIPA supporters as "essential facilities." Now you'd be saying that because these groups are less ubiquitous than Google, this somehow makes their political support of the measures more worthy of public approval?
Righthaven, with good intent, was set up to vindicate people's rights that were being violated.
Gibson went on record a few years ago stating that the market for prosecuting online copyright infringement was in the "gazillions." Combine that with the haphazard way the agreements with Stephens Media and the Post were executed and the arrogant manner in which Righthaven went about extorting settlements, it's very difficult for many of us to see their intent as an altruistic vindication of newspapers' copyrights. This has all the earmarks of a cash grab with little to no regard for motivating creativity as intended by copyright law.