average_joe 's Techdirt Comments

Latest Comments (1892)

• On the post: When Captain Picard Loses Patience With Your Cable Service, You Need To Run A Tighter Ship

  

  average_joe ( profile ), 24 Sep, 2012 @ 04:42pm

  Re: Re:

  Ha! Sure it was.

• On the post: When Captain Picard Loses Patience With Your Cable Service, You Need To Run A Tighter Ship

  

  average_joe ( profile ), 24 Sep, 2012 @ 04:40pm

  Re: Re:

  Why didn't they just always use real bullets? The phasers only worked for a few seconds, but the bullets seem to always work. Should have gone retro.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 03:55pm

  Re: Re: Re: Re: Re: Re: Re: Re:

  You brought up an irrelevant point only to distinguish it, and I'm pedantic? I don't see it.
  
  OK, you want to argue "facts" in response to my "legal" assertion. Have at it. You haven't disproved that what I said is legally correct though, counselor.
  
  I think it makes sense that more often than not the subscriber is the infringer. The other poster had mentioned the 70/30 number from one case. That "fact" supports the "legal" view.
  
  What are your "facts"? Let's take a look.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 03:52pm

  Re: Re: Re: Re: Re: Re:

  I quoted the opinion of the court, not Mr. Randazza. There's other cases too that make the same point about how evidence of an IP address being used is prima facie evidence that the owner is an infringer. I think that's the correct view. All it means is that it's more likely than not.
  
  Randazza is a character, I'll give you that. I thought his "leaving your wifi open is negligence" theory was stupid. I think he's a good attorney, though a bit too aggressive at times.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 03:47pm

  Re: Re: Re: Re: Re: Re: Re: Re: Re:

  Digital rights management (DRM) is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale.
  
  Like I told bob last week, THAT is the definition of DRM. Which, as is rather obvious, DOES indeed violate a person's rights. Notably, "limit the use of digital content and devices after sale". Note that word "limit". Limit is "something that bounds, restrains, or confines". Do I go on?
  
  Even if you have the right to copy something, it doesn't follow that it violates your rights to sell you something that is difficult to copy. Can you cite the source of your alleged right to be free from any limitation on your ability to copy?
  
  That argument has been tried and failed:

  Defendant relies heavily on congressional intent to preserve fair use but that congressional intent does not change the analysis. The Act expressly disclaims any intent to affect the rights, remedies, limitations, or defenses to copyright infringement, including the right of fair use. 17 U.S.C. ? 1201(c). Congress' expressed intent to preserve the right of fair use is not inconsistent with a ban on trafficking in circumvention technologies, even those that could be used for fair use purposes rather than infringement. Fair use of a copyrighted work continues to be permitted, as does circumventing use restrictions for the purpose of engaging in a fair use, even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained.
  
  The inescapable conclusion from the statutory language adopted by Congress and the legislative history discussed above is that Congress sought to ban all circumvention tools because most of the time those tools would be used to infringe a copyright. Thus, while it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention. That is part of the sacrifice Congress was willing to make in order to protect against unlawful piracy and promote the development of electronic commerce and the availability of copyrighted material on the Internet.
  
  ***
  
  Defendant's arguments are not persuasive. First, the DMCA does not ?eliminate? fair use. Although certain fair uses may become more difficult, no fair use has been prohibited. Lawful possessors of copyrighted works may continue to engage in each and every fair use authorized by law. It may, however, have become more difficult for such uses to occur with regard to technologically protected digital works, but the fair uses themselves have not been eliminated or prohibited.
  
  For example, nothing in the DMCA prevents anyone from quoting from a work or comparing texts for the purpose of study or criticism. It may be that from a technological perspective, the fair user my find it more difficult to do so?quoting may have to occur the old fashioned way, by hand or by re-typing, rather than by ?cutting and pasting? from existing digital media. Nevertheless, the fair use is still available. Defendant has cited no authority which guarantees a fair user the right to the most technologically convenient way to engage in fair use. The existing authorities have rejected that argument. See Corley, 273 F.3d at 459 (?We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original.... Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.?)

  United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1125-31 (N.D. Cal. 2002).

  Third, the Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format.34 Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student's documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a ?horse and buggy? technique in making fair use of DVD movies,35 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

  Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
  
  I'm just not buying your arguments, and I'm not aware of any court that ever has.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 03:20pm

  Re: Re: Re: Re: Re: Re:

  70/30 was a ratio provided by the plaintiffs who admitted the error rate when asked about it. You don't think that this is problematic given the sheer number of settlement letters and threats they send out?
  
  That was the admitted error rate in one case with one plaintiff. I have no idea what the number is in different cases, and neither do you. Even if that 30/70 is correct, that's still prima facie evidence (which just means more than 50% chance).

• On the post: When Captain Picard Loses Patience With Your Cable Service, You Need To Run A Tighter Ship

  

  average_joe ( profile ), 24 Sep, 2012 @ 02:54pm

  Captain Jean-Luc Picard, the man who defeated the Borg
  
  If memory serves, the first time he encountered the Borg Q had to save his ass. The next time, Picard himself was assimilated as Locutus. Using the knowledge gained from Picard/Locutus, the Borg wipe out most of the fleet. It's Picard's crew that end up saving the day. I can't remember what happens in First Contact with the Borg Queen, but I think maybe Data saved the day there. Not sure though. Anyway, I don't remember Picard defeating the Borg.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 02:44pm

  Re: Re: Re: Re: Re: Re:

  That's just factually wrong. An IP address address does not even satisfy the "more likely than not" preponderance of the evidence burden in these civil cases, let alone the "beyond a reasonable doubt" standard that rightsholders and the government must meet in criminal copyright suits.
  
  The "beyond a reasonable doubt" standard is irrelevant in these civil mass infringement cases. As far as the civil standard goes, can you cite one court that agrees with you?
  
  I can find several that don't:

  Thirteen putative defendants argue that they should be dismissed from the lawsuit because the plaintiff has improperly joined them with other putative defendants.17 The putative defendants' argument that they are improperly joined may be meritorious should they be named as defendants in this action. At this stage in the litigation, however, when discovery is *11 underway to learn identifying facts necessary to permit service on Doe defendants, joinder, under Federal Rule of Civil Procedure 20(a)(2), of unknown parties identified only by IP addresses is proper. As discussed below, this conclusion is further supported by the allegations set forth in the Complaint, which sufficiently establishes a prima facie case of infringement of plaintiff's copyrights by users of the same file-sharing software program that operates through simultaneous and sequential computer connections and data transfers among the users.

  Maverick Entm't Group, Inc. v. Does 1-2,115, 810 F.Supp.2d 1, 10-11 (D.D.C. 2011).

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 02:39pm

  Re: Re: Re: Re: Re: Re: Re:

  A defendant's right to due process is not dependent on the convenience or practicality of the plaintiff.
  
  I didn't say it was, nor would I. Nor do I understand how anyone's due process rights are being violated. Can you explain?

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 02:35pm

  Re: Re: Re: Re:

  Really? Where is the case law backing this up?
  
  It's all around you. See, e.g.,

  In order to establish a claim for copyright infringement, Liberty Media must show that it holds a valid copyright and that the moving defendants violated one of their exclusive rights as the copyright owner. London?Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 165 (D.Mass.2008) (Gertner, J.); see 17 U.S.C. ? 501. Liberty Media has produced sufficient evidence as to both these requirements to establish a prima facie claim. Liberty Media has shown that it holds a valid copyright to the Motion Picture, see Compl., Ex. 1, Certificate of Registration, ECF No. 1?1, and the copyright is not disputed here. Moreover, Liberty Media's investigator, Malte Dinkela, has demonstrated that Does 1?38 violated Liberty Media's exclusive right as the copyright owner to reproduce and distribute the copyrighted material.

  Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444, 449 (D. Mass. 2011).

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 02:31pm

  Re: Re: Re: Re: Re: Re: Re:

  So then why are you silent about the fact I can not use things I purchase how I want to because they made it illegal for me to try and format shift?
  
  What specifically makes it illegal for you to format shift?
  
  What about my right to make a backup copy that is voided because of a crappy piece of DRM code?
  
  DRM doesn't violate your rights.
  
  Why is it the rights of corporations are more important to you than regular people?
  
  Everybody's rights are important.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 01:39pm

  Re:

  On the contrary, I think there are good arguments for and against these mass lawsuits. I think both sides make good points. There's no easy answer.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 01:38pm

  Re: Re: Re: Re:

  If it is premature to sever based on possibility, why isn't is premature to file a frivolous lawsuit based on 70% possibility?
  
  The lawsuit is what enables the plaintiff to gather information about the infringer. Without it, the plaintiff could not issue a subpoena to the ISP to get the subscribers' information. Plaintiffs could never go after anonymous infringers since they wouldn't even know where to begin. At that point, there isn't even a lawsuit against a named defendant. The lawsuit is against the Doe, whose identity the plaintiff doesn't even know yet. You seem to have a strange idea that lawsuits aren't filed until the plaintiff knows 100% that the defendant did it. That's not how it works. The lawsuit is what enables the plaintiff to gather more information via discovery.
  
  70% likelihood of the alleged connection is not a prima facie case.
  
  If a plaintiff has evidence that a subscriber's IP address was used to infringe on their copyrights, then the plaintiff has made out a prima facie case against that subscriber. The burden shifts to the defendant to make out some defense, and if the defendant can't or if they default, the plaintiff will win.
  
  And I'm not convinced that the 70/30 thing is accurate for all cases.

• On the post: Unfortunate: Kickstarter's Overaggressive Reaction To DMCA Notices

  

  average_joe ( profile ), 24 Sep, 2012 @ 01:26pm

  Re: Re:

  Seriously? That is the point of attack you are taking?
  
  Not an attack. I clicked on the "bags" link and found there isn't even one other article labeled as such. Just curious. Maybe Mike plans a series of post about bags.

• On the post: Unfortunate: Kickstarter's Overaggressive Reaction To DMCA Notices

  

  average_joe ( profile ), 24 Sep, 2012 @ 12:57pm

  File under: "bags"? Huh?

• On the post: NZ Prime Minister Admits That The Government Illegally Wiretapped Megaupload Employees

  

  average_joe ( profile ), 24 Sep, 2012 @ 12:27pm

  Re: Re:

  Curious. Weren't you the person going on and on and on about how any violation of someone's "rights" was clearly "immoral."
  
  You don't think spying on their personal communications outside of what the law qualifies as a violation of rights or being immoral?
  
  And I said that if someone did something wrong, they should be punished. And the fact that they are tasked with upholding the law, it makes it all the more deplorable.
  
  But you're skirting the question (surprising!): How does this story lead you to question whether they have "any legitimate evidence" about Dotcom's guilt? What does this have to do with all the evidence in the superseding indictment?

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 12:14pm

  Re: Re:

  Once a Doe settles, there's no reason to press on with the lawsuit. So I don't understand your point. An IP address is enough to establish a prima facie case that the subscriber is the infringer, so I don't see the problem there either. Sure, the defendant might have some defense, but that doesn't negate the plaintiff's prima facie case.
  
  I understand that some individual defendants probably have individual defenses that would make joinder impractical. But at this early stage of the proceedings, where no Doe defendant has even been named in the suit, I think it's premature to sever based on that possibility.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 12:07pm

  Re: Re: Re: Re: Re:

  I think the violation of someone's rights is itself a harm. The extent of that harm is impossible to gauge, hence the existence of statutory damages.

• On the post: Another Judge Blasts Copyright Trolls

  

  average_joe ( profile ), 24 Sep, 2012 @ 12:06pm

  Re: Re: Re: Re: Re:

  The deck is stacked because one victim is having his rights violated by thousands of infringers at a time. These lawsuits are a symptom of the problem, which is that it's not practical or possible for a victim to file a separate federal lawsuit for every separate infringer.

• On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

  

  average_joe ( profile ), 24 Sep, 2012 @ 11:59am

  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

  He has answered. Many times. You've even acknowledged his answer: he, personally, believes it's unethical because it goes against the wishes of artists.
  
  He said "piracy is not OK" because it goes against artists' wishes. He refuses to directly answer the question of whether he thinks it's immoral. I've explained before all of the qualifications he places on that statement (such as the fact that he doesn't think artists should worry about it)--so many that I don't see how he could think it's immoral. He admits that some people don't like it, which is just the admission of a fact. That's a separate issue from whether he thinks it's immoral.
  
  And you haven't explained how even though he has explicitly said, "There is no moral issue at all," you still think that he thinks it's immoral. I don't buy it. Those two statements are irreconcilable, and I think the most obvious answer is that he in fact does not think piracy is immoral. He doesn't want to have to admit this explicitly, so he's avoiding the question like the plague. He avoids any and all direct discussion about his personal beliefs, from what I can tell.
  
  So, are you finally going to say why your viewpoint is ethical, or not?
  
  Really? I gave a lengthy (several paragraphs) explanation of the basis of my personal beliefs and why I think the moral issue tracks the legal issue. I think for the most part the two are coextensive, as I explained above.

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