Big Guns Come Out In Effort To Show RIAA's Lawsuits Are Unconstitutional
from the this-ought-to-be-worth-watching dept
People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It's not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it's been brought up in court, the arguments haven't been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.
However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely unconstitutional.
He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:
Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.
This Court should exercise its inherent power to allow background image redress to Joel Tenenbaum for Plaintiffs' abuse of law and federal civil court process. As detailed throughout this brief, Plaintiffs are using any and all available avenues of federal process to pursue grossly disproportionate -- and unconstitutional -- punitive damages in the name of making an example of him to an entire generation of students. The case at hand warrants the use of inherent federal power not just because of what Plaintiffs are doing to Joel Tenenbaum in this Court, but because of the manner in which Plaintiffs are abusing the federal courts all across the country. Plaintiffs have pursued over 30,000 individuals in the same way they have pursued Joel.... For these 30,000 individuals, Plaintiffs have wielded federal process as a bludgeon, threatening legal action to such an extent that settlement remains the only viable option. Joel Tenenbaum is unique in his insistence, in the face of it all, on having his day in court. The federal courts have an inherent interest in deciding whether they will continue being used as the bludgeon in RIAA's campaign of sacrificing individuals in this way.The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a "perversion of lawfully initiated process to illegitimate ends," and citing the case law that suggests such behavior should be punished by the courts: "One who uses a legal process ... against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process."
And this is where it gets good.
To prove the abuse of the process, the filing uses the RIAA's own words against it. First, the writers note (and cite the relevant cases) that even if there is a "proper purpose" behind the filing, it's an abuse of process if the primary purpose in filing the lawsuit is different than the "proper purpose" behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its "deterrence" educational program. From deterrence, Nesson shows how it's actually used as more of a bludgeon to get students to settle, which is clearly not the "proper purpose" of the law:
In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that "the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding"). The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a new trial).This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees' nest of Harvard Law.
The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."
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: charles neeson, constitutionality, fines, joel tenenbaum, lawsuits, penalties
Companies: riaa
Reader Comments
Subscribe: RSS
View by: Time | Thread
I'm buying a Harvard T-shirt because of this.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Thank you
[ link to this | view in chronology ]
Hope
[ link to this | view in chronology ]
"Time to kick ass or chew bubble gum. And I'm all outta gum."
[ link to this | view in chronology ]
Re:
Duke Anonomous
[ link to this | view in chronology ]
"We gladly feast on those who would subdue us."
[ link to this | view in chronology ]
Very Interesting Indeed
I wonder if the RIAA ill gotten gains will be addressed. I imagine that all moneys should be returned with interest, and possibly punitive damages.
Hey - Davenport Lyons, Atari, and other using this scam, be afraid, be very afraid.
[ link to this | view in chronology ]
Re: Very Interesting Indeed
Even if all of the RIAA's stuff is shot down here, that is still only for music, not games (yet), and only for the US (until it expands to other countries, assuming it would since our groups here weer the ones pushing for those BS laws and agreements).
[ link to this | view in chronology ]
At the very least, in the McDonalds case a person received 3rd degree burns. And in the pants lawsuit, the cleaner did in fact lose his pants. Here, the RIAA is claiming massive damages over a few 99 cent songs.
And worse of all, the RIAA is not even proving that the songs were actually copied, merely that there was a potential to be copied by being shared. It would be like suing someone because their act could possibly have caused me to slip and fall, without any proof of an actual slip and fall.
Of course someone will argue that the problem of music piracy is widespread that the RIAA has to be able to recoup anyway it can. However, in tort law the plaintiff is generally limited to actual damages, with some limited exceptions for outrageous conduct. And it is certainly true in tort law that you can only recover for the damages caused by the defendant. In other words, you cannot make a defendant pay for damages that a non-party caused.
[ link to this | view in chronology ]
Re:
The McDonald's coffee lawsuit was NOT a frivolous lawsuit. The store KNEW they were heating the coffee to an unsafe level and yet did nothing about it. They had been warned previously and, IIRC, had a couple of other incidents involving burns but the one you heard about was the one that made it to court. The woman who got the burns sought to get her medical bills paid and DickMe's offered her MUCH less so she filed suit. That does not indicate a frivolous lawsuit by any means.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
The store KNEW they were heating the coffee to an unsafe level and yet did nothing about it
"Unsafe" is subjective, whether they knew it or not.
They sold coffee, commonly known as a "hot beverage", in a lidded, insulated container. She removed the lid, wedged the now open container between her legs, and was attempting to adulterate the beverage with cream and sugar while driving. She used the product in an inadvisable, and arguably unsafe, manner.
The woman who got the burns sought to get her medical bills paid
One would hope she has medical insurance for illness and injury, and should count herself fortunate if they were to pick up the bill. I still, all these years later, fail to see how this is McDonald's fault.
Say I buy a hammer and whack myself in the head with it during a tragic juggling accident. Does this make it the manufacturer's fault because there wasn't a sticker warning me against the dangers of juggling? Or is it my fault for being a dumbass?
I personally vote "dumbass", but I haven't suffered the head trauma yet. Maybe that's what I need to see the manufacturer as liable for what are ultimately my actions.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
This was done *specifically* to save the company money
[ link to this | view in chronology ]
Re: This was done *specifically* to save the company money
The lady was not driving, she was a passenger. The vehicle was not in motion when she burned herself.
She burnt herself while trying to remove the lid from the cup.
She suffered 3rd degree burns over 6% of her body, including her inner thighs, perineum, buttocks, and genital and groin areas.
The 180-190 F temperature was to maintain optimum taste. Home coffee is maintained 135-140 F. The McDonald's QA manager testified that the company actively enforced the temperature requirement and also testified that food above 140 F represents a burn hazard. Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds.
She was hospitalize for 8 days and underwent skin grafting and debridement treatment.
During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992.
With other facts presented, the JURY awarded $200,000 in compensatory damages and $2.7 million in punitive damages, or about 2 days of coffee sales.
[ link to this | view in chronology ]
Re: Re: Re:
McDonalds at the time had the 1st or 2nd hottest coffee in the industry with the other being White Castles. (sorry I do not remember if it was 1st or 2nd)
She and older woman was not driving as you said she was being driven to an appointment by a family member (Grandson or nephew) when they went stopped to get coffee.
Part of the reason that she was awarded damages is she sustained 3rd degree burns to her groin and they presented this as evidence. So the jury had to look at enlarged images of an elderly womans severely burnt genital that she had to have skin graphs performed on.
I do not know about you but seeing those images would be almost enough for me to rule in her favor just so I do not have to see that any more.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
She and older woman
Relevant why? Pity for the elderly? She is a grown adult fully capable of accepting responsibility for her own judgement and actions.
was not driving as you said she was being driven to
This seems a touch nit-picky.
Just the same, let's recap - 1) moving car, 2) open container, 3) known hot beverage, 4) voluntarily wedged between her legs.
SHE removed the lid. SHE put it between her legs. SHE chose to do so in a moving vehicle.
Why then is the entire culpability thrown to McD's? What of her own part taken in creation of this incident?
she sustained 3rd degree burns to her groin and they presented this as evidence.
This is a horrible, horrible thing, and I wouldn't wish it on her, truly. Still not seeing it as McD's fault. (I'm wrong, obviously, since the courts found in her favor, but that doesn't mean I have to agree that this is a just ruling)
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Oh, she certainly did something stupid. Few people will disagree with that. The issue is that, if McDonalds had been heating their coffee to an industry-declared "safe temperature", the worst she would have suffered is first-degree burns. If she'd sued after this, we could have easily written her off as a fake victim. She was dumb, she got punished for it, case closed.
The reason McD's is fully liable is because their coffee was too hot. It wasn't an accident. It wasn't a one-time thing. They specifically heated their coffee hotter than the healthy regulations said was safe. (I heard they did it so that people's coffee would still be drinkably hot when they got to work.) Due to their flaunting of the health code despite health inspectors warning them for it, what *should* have been a minor burn due to a stupid action turned into major physical damage that resulted in immense pain and required surgery to correct.
She burned herself so bad, they had to give her skin grafts. In the groin. That wasn't her fault. That was McDonalds' fault. That's why the court ruled in her favor. She was dumb, but McDonalds was willfully negligent in their actions.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
http://www.lectlaw.com/files/cur78.htm
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Again, not true.
Do you work for them, or perhaps own some of their stock?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Those groups are about raising money for the Republican party. There is no real issue here that helps the party, thus no outrage.
[ link to this | view in chronology ]
Mr. Neeson's most recent foray into the world of copyright was Aldred v. Ashcroft, in which he and others teamed with Mr. Lessig to challenge the Copyright Extension Act (aka, the Sonny Bono Act).
Their collective arguments went down in flames in a 7-2 decision by the Supreme Court (Stevens and Breyer filed dissenting opinions). Importantly, the court's decision could not be more clear that Congress has wide latitude to decide what it deems as "promoting progress", and reinforced the general unwillingness of the Supreme Court to overrule longstanding precedent and second guess decisions made by Congress.
Mr. Neeson and his cracker-jack team of law students have an extremely tough row to hoe, particularly given the clear lines of demarcation drawn many, many years ago by Congress in defining and implementing two separate classes of suits under our copyright laws. There are specific sections dealing with criminal prosecution, and specific sections dealing with civil infringement. What Mr. Neeson is railing against is that civil infringement damages are broken down into two distinct parts, namely actual damages and "in lieu" or "statutory" damages. Caselaw has long recognized that a copyright plaintiff is entitled by law to select either of these damage measures.
For Mr. Neeson to advocate that the statutory damages part of the civil proceedings under copyright law is in essence a quasi criminal proceeding for which a private litigant may not proceed as a "private attorney general" is a broad reach that in my view will fail to find traction before the federal courts at both the district and appellate levels. The same can be said for the magnitude of the statutory damages amounts.
While the case may offer hope to some people who rail against some aspects of current copyright law, it seems clear Mr. Nesson and his team are embarking on a long term project hoping for an outcome that runs against the tide of both clear statutory language and federal court jurisprudence/caselaw. Personally, I believe their time would be far better spent directing their arguments to Congress.
[ link to this | view in chronology ]
Re:
By the way, we call that a "straw man" argument. You inserted something clearly irrelevant, and then used it to attempt to prove your point. Do you work for the RIAA?
[ link to this | view in chronology ]
Re: Re:
For those encouraged by this article, the best I can say is wish the team luck because they are going to need it.
[ link to this | view in chronology ]
Re: Re: Re:
Allow me to suggest Hamdan v. Rumsfeld, where SCTOUS second-guessed the contention that the Geneva Conventions do not apply to al-Qaeda, no matter how badly the Executive wanted that to be the case.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Should you harbor any doubt as to the deferrence generally given to Congress by the Supreme Court in matters under copyright law, Aldred v. Ashcroft is quite instructive.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
And there is the problem with many of the RIAA "letters".
Most do not make it to court because of the cost of defending ones self, and this is a travesty of "justice".
Even some cases that are in front of a court, the RIAA can not provide adequate evidence of infringement.
[ link to this | view in chronology ]
Re: Re: Re:
Then you clearly did not read or are unaware of Boumediene v. Bush.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
ELDRED!
[ link to this | view in chronology ]
Re:
As for the Neeson's effort, I say this with a half-smirk-- how can I donate a few bucks to Harvard?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
Easy. Vote for BHO on Tuesday and you can be sure Harvard alumni will gladly take your bucks using the IRS as their proxy.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Easy. Vote for BHO on Tuesday and you can be sure Harvard alumni will gladly take your bucks using the IRS as their proxy.
Or vote McCain to continue the Bush policy of limiting, erroding, or outright ignoring the constitution and the civil rights and liberties it "guarantees".
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
150,000 in one day in my old home-state? Wow.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Curious about the use of quotation marks here -- or as Jon Stewart recently called them: "dick fingers."
Mr. Neeson's most recent foray into the world of copyright was Aldred v. Ashcroft, in which he and others teamed with Mr. Lessig to challenge the Copyright Extension Act (aka, the Sonny Bono Act).
And thus he's a fool. Can't believe anyone listens to that guy...
Mr. Neeson and his cracker-jack team of law students
Once again, you who claims to never insert opinion into a comment here uses a phrase like "crack-jack" to describe some Harvard law students. That's similar to your use of "nutty". You're oozing of opinion.
Btw, where did you attend law school?
[ link to this | view in chronology ]
Re: Re:
Re reference to Eldred, I answered a similar comment above. The important point to be made is that Eldred demonstrates, when taken together with the specific structure of copyright law, the almost insurmountable hurdle facing anyone who is going to try and convince a court that "statutory/in lieu" damages are in essence a quasi-criminal proceeding. This is a weak argument at best and unlikely to be favorably received by the federal judiciary in light of longstanding caselaw at the district and appellate court levels.
Re law students, if you have ever worked with law students under the tutelage of a professor you will appreciate that these activities in large measure mimic Moot Court proceedings...many theories, most of which fall well short of the mark.
I attended law school in California in San Diego, grad school for aero in Monterey, and undergrad at Annapolis. Moreover, I am 6'2", enjoy outdoor sports and photography (I post my photos on the internet and tell people do with them as you wish; see, e.g., www.sxc.hu), appreciate romantic dinners with my wife overlooking SF Bay and Monterey Bay (whenever we have the chance to visit), and, dare I say this, watch "Dancing with the Stars". Not to date myself, but I flew P-3Cs out of Moffett Field at a time when the Santa Clara Valley still had many cherry orchards.
On the professional side, I happen to believe that the RIAA is embarked on a litigation campaign using a "business model" that is not particularly wise. What it is doing is generally within the bounds of law, but there are times when PR is just as important, if not more so.
[ link to this | view in chronology ]
Re: Re: Re:
What in the world does that mean? Is "aero" really something you can get a degree in?
Considering your avoidance of claiming any professional degrees, just what would your "profession" be?
[ link to this | view in chronology ]
Re:
I assume you reference the "broad reach that in my [your] will fail to find traction before the federal courts at both the district and appellate levels." because you've not provided the support regarding the magnitude of damages that you provided for the civic/criminal argument. It's not clear to me.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
@TDR: It's a good thing that we have a court system, because as much as I think the RIAA is wrong in their pursuit of copyright infringement against non-commercial interests, your brand of justice is worst.
[ link to this | view in chronology ]
Harvard....
[ link to this | view in chronology ]
Re: Harvard....
It is only fair, right?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Spelling Nazi...
[ link to this | view in chronology ]
Bout Time
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Three Cheers
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Can't believe no one's said this yet.
Do you like apples? Well, how do you like THEM APPLES!?!?!?
Nobody messes with Hahvahd.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
IT"S A SHAM
[ link to this | view in chronology ]
Re: IT"S A SHAM
I take it you'd prefer the civil law system, where judges have little power and every time there's a question of law raised you have to go to the legislature and have it specifically legislated to a specific end? Personally, I prefer not to have such a bloated process, but if that's the way you feel, move to Canada or France. The common law system is not going away in the U.S.
[ link to this | view in chronology ]
Re: Re: IT
[ link to this | view in chronology ]
Re: Re: IT
Um, Canada uses a common law system as well, except in Quebec.
[ link to this | view in chronology ]
Some DOGMA here?
Im not sure thats true and I would like to know where this particular doctrine is supposed to come from?
[ link to this | view in chronology ]
Re: Some DOGMA here?
I think the issue that this specific line addresses is the issue of abuse. Abuse in the sense of using a filing for an intent that was not specifically granted the plaintiff. Hence, the abuse is inherent in the fact that the granted primary purpose for these lawsuits is not to "make examples of potential lawbreakers", but to provide a means for those who have been victimized by copyright infringement a means to recouperate actual losses.
This is, in no way the crux of their argument. It only provides a rather straightforward way of discrediting the arguments of the RIAA.
@ Anonymous Coward:
I don't find anything wrong with Neeson having lost before. It just shows that he's human. In fact, I'm more inclined to believe that he's probably not backing this venture because he personally believes in it, but because it is either a class choice or he believes in fighting the abuses of the system. Either way, I'm more excited that someone talented is actually taking the time and money to fight back against the RIAA at all...The biggest advantage that I feel Neeson actually has, besides his own experience and expertise, is the youth and energy of the students he's teaching...while they may not have the experience, they may have the advantage of quicker minds, and certainly they have the advantage of legal precedent...the RIAA has been abusing loopholes for too long...inevitably, someone has always called such tactics in the past. It's probably the RIAA's time to get shut down for their abuses.
[ link to this | view in chronology ]
Score one for the Harvard Professor
I am so glad to see the Berkman center and Neeson finally fighting back. I hope the courts will finally get to the root of the problem.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Next
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Palin's Moose Gun
[ link to this | view in chronology ]
Re: Palin's Moose Gun
[ link to this | view in chronology ]
Re: Re: Palin's Moose Gun
[ link to this | view in chronology ]
It's not "Aldred v. Ashcroft"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: Etc.
This is where a legal team should be able to hit the group the hardest, not necessarily in the level of fines that congress allowed them to go collect. If they take them out at the knees and make them no longer a police state someone else will have to collect all the money. That new someone would have to do it legally, though a court system, and have trials for each case.
This alone would change so much that the very existence of the RIAA as a legal mob squad that almost all of the problems would be solved. The court cases would shift to gross theft or huge violations of copyright, as opposed to having something on a hard drive. The entire outlook would be changed as well as the court systems tie up, and something would finally be done about this entire situation.
Just IMHO. The fact that he lost before has no bearing on this case, and the fact that the court voted 7-2 also has very little bearing. The issue that will be in play as this hits the real court circuit is not the same as the Eldred v. Ashcroft case, and it is also backed strongly by popular opinion now (as the RIAA has become EXTREMELY infamous). Hopefully this will be the catalyst to the changes we've all been looking for.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Joel's case
[ link to this | view in chronology ]
I'm disappointed w/ Nesson
Judges aren't really supposed to take into account the quality of a legal brief's writing, but it can often affect how they feel about the quality of a litigant's argument. While I can somewhat get behind his legal theory, his writing makes him look like a novice, and it does his client a disservice.
[ link to this | view in chronology ]
Re: I'm disappointed w/ Nesson
[ link to this | view in chronology ]
Re: I'm disappointed w/ Nesson
[ link to this | view in chronology ]
Re: Re: I'm disappointed w/ Nesson
When a litigator does not indicate the court from which he gets his authority, it does not cast his argument in a favorable light. It makes the litigator look like he is trying to hide something.
In this case, failing to indicate the court from which Nesson cites his authority makes it look like Nesson is trying to cast said authority as binding, when in actuality it is only persuasive. Judges don't like it when a litigator tries to pull a fast one. I won't assume that Nesson was indeed trying to do so, but I can't guarantee that a judge won't think so.
[ link to this | view in chronology ]
RIAA and other copy control agencies may get what they deserve.
[ link to this | view in chronology ]
Revenge would be sweet.
OH YEA BABY!
[ link to this | view in chronology ]
--- Amen.
[ link to this | view in chronology ]
Karma
They will get everything they deserve, whatever it is.
[ link to this | view in chronology ]
Shoulda..
As legislated, "educational purposes" was deemed a legitimate reason for fair use of a copyrighted work. Court decisions have eroded this on the sole basis that the rightsholders wanted a royalty fee paid to them. A student -or instructor-should be able to print whatever they want for class, wherever they want- at home or at a copy shop on campus.
[ link to this | view in chronology ]
Re: Shoulda..
Absolutely. It's not as if they would be taking away income from the author and publisher.
Darn authors and publishers...what makes them think they should even be charging for scarce goods in the first place?
[ link to this | view in chronology ]
Re: Re: Shoulda..
And what makes them think that easily copied information is "scarce" either?
[ link to this | view in chronology ]
Why Buy What I Can Steal
At the end of the day you stole something that other people produced and were offering for sale. It took an entire sector of the economy working hard to produce that item. Thousands of hours from sound engineers, musicians, software programmers, etc. to produce the end product, which you so gladly and righteously stole.
Is file sharing the most evil crime? No, but don't act all self righteous about how it's unjust for you to get punished for stealing a product some else produced.
How did we become the entitlement generation?
[ link to this | view in chronology ]
Re: Why Buy What I Can Steal
No, the real question is when did folks like you become impervious to basic logic?
Stealing means having something removed.
Infringement means having something copied.
No one is saying that either one is legal, but we do believe that a legal process needs to work within common sense bounds (something you seem unfamiliar with).
Our position has nothing to do with "entitlement" and everything to do with basic economics (which is basic common sense). If that whole "sector of the economy" you describe can be BETTER OFF by letting content be free and putting in place smarter business models, how is that entitlement?
[ link to this | view in chronology ]
Re: Re: Why Buy What I Can Steal
Secondly you accuse me of lacking basic logic which you showed none of in your response. Explain to me how that whole sector of the economy that surrounds the music industry will be "better off" by giving away their product for free and not making any money to support themselves?
Or what is this so called better business model you speak of? Better for you or better for the producers?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
RIAA are cowards.
[ link to this | view in chronology ]
selective enforcement
[ link to this | view in chronology ]
Eldred
Eldred is quite instructive, but probably not in the way you mean.
That is, it shows how a group of justices who claim to be "textualists" can be just as "activist" as they like, when it suits them, and completely ignore the black-letter text of the Constitution.
It's OK, though... Scott v. Sandford and Plessy v. Ferguson were overturned, too.
*^*^*
On the issue of RIAA litigation -- I keep waiting for the Mother of All Shareholder Lawsuits to be filed against the RIAA member companies for needlessly squandering stockholders' equity.
[ link to this | view in chronology ]
Stupid McDonalds patrons.
The 180-190 F temperature was to maintain optimum taste. Home coffee is maintained 135-140 F. The McDonald's QA manager testified that the company actively enforced the temperature requirement and also testified that food above 140 F represents a burn hazard. Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds.
[End Quote]
Blah blah blah. To make coffee, one must first heat water to basically boiling so that it will move through the coffee maker. Unless you're using a coffee press, I've never seen coffee come fresh from a machine at anything less than 175F. Obviously the "scholar" doesn't own a real coffee maker nor understands how one works.
[Begin Quote]
During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992.
[End Quote]
And how many cups of coffee did they sell during this time? Billions. 700 claims in 10 years? Damn, that's pretty good, for *ANYTHING*. That's 70 claims in a year. A little over 5 claims a month. What was once said? You can't please all of the people all of the time? Five complaints a month don't warrant doing SQUAT! Not even statistically significant if you consider the number of cups of coffee were sold.
Let's do more math. Just for the fun of it. Let's use theoretical round numbers. Let's say they sell 50 cups a day, and each month is 30 days, so they sell 1500 cups a month. If there's 5 complaints...that's like 0.33~%. Yes, 1/3rd of a percent.
I bet they sell a lot more a day than that.
Gee, coffee is *HOT*. Get over it.
The woman was a moron, obviously anyone who did the study doesn't actually *OWN* a real coffee maker.
They should have shot her in the head and put her out of our misery. One less stupid person in this world.
[ link to this | view in chronology ]
i agree
[ link to this | view in chronology ]
[ link to this | view in chronology ]