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

from the shocking dept

Tue, Nov 18th 2008 5:33pm — Mike Masnick

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.

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

7 Comments

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Anonymous Coward, 18 Nov 2008 @ 6:04pm

Could someone sue the PFF for false advertising (its name?)
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- Deputy Dog, 18 Nov 2008 @ 6:19pm
  
  Re:
  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".
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Craig, 18 Nov 2008 @ 7:27pm

This stuff...
Could it be any more boring than this?
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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.
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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.
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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?
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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.
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