A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.

from the what-what?-fair-use dept

Fri, Jun 8th 2012 7:07am — Mike Masnick

A couple years ago, we wrote about the bizarre case filed by Brownmark Films, who produced the "viral" video "What, What (In The Butt)," against South Park for doing a parody of the video.

The show had actually licensed the song, but the producers claimed that they should have also licensed the video, which is separate from the song (thus, the "singer" was not a part of the lawsuit). Viacom and South Park argued that this was clear parody and fair use and the district court not only agreed, but dumped the lawsuit without a trial on the fair use claim. Some copyright maximalists like to claim that fair use is only a defense to infringement, and thus can only be raised at trial, not earlier in the process. The loss was so complete and thorough, that the court even awarded Viacom legal fees from Brownmark -- something you rarely see in copyright lawsuits, except in the most egregious overreaches.

Brownmark appealed the ruling, and the 7th Circuit has wasted very little time in affirming the lower court ruling, which it calls "well-reasoned and delightful." The appeals court did differ slightly on the reasons a court can dump a case pre-trial when there's clearly fair use, but its quibble is really procedural, concerning which specific process should be used to claim fair use and get a bad case rejected. Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial. In fact, the court notes that this makes sense, specifically to avoid copyright trolling behavior where defendants feel the need to settle rather than deal with the costs of fighting a bogus lawsuit. This is good news.

In fact, as Paul Levy notes, this may be the first time that an appeals court has specifically used the term "copyright troll," lending additional credence to that phrase:

We noted during oral arguments that such a broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a "copyright troll."

Similarly, it highlights why such copyright trolling is so problematic:

...infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

This seems like a very useful precedent to cite in other such cases.

The court also goes through the fair use determination and says that not only was it proper to drop the case pre-discovery, but the fair use reasoning was perfectly sound. And here, we learn that the 7th Circuit Justices enjoy themselves some viral videos:

Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.

There's a sentence I never thought I'd see in a judicial ruling. There's also a lengthy footnote that, believe it or not, discusses historical South Park episodes that demonstrates that the character Butters "has repeatedly demonstrated a lack of understanding of sex," and goes on to name the specific episodes, including "Cartman Sucks" and "Stupid Spoiled Whore Video Playset."

No matter what, this ruling is a strong victory for fair use... and just in time for our 1pm Q&A discussion about the book "Reclaiming Fair Use." Perhaps the court was just looking to provide some discussion material for us.

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Filed Under: 7th circuit, butters, copyright troll, fair use, parody, south park, viral video
Companies: brownmark

58 Comments

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:Lobo Santo (profile), 8 Jun 2012 @ 7:22am

The beuracracy is expanding to support the expanding beuracracy.
"...this may be the first time that an appeals court has specifically used the term "copyright troll,""
Good! The sooner it is acknowledged as being a thing, the sooner 'official' action can be taken against it.
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:Lobo Santo (profile), 8 Jun 2012 @ 7:23am

Re: The beuracracy is expanding to support the expanding beuracracy.
*Bureaucracy (x2)
(dangit! not awake enough to spell yet.)
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Cory of PC (profile), 8 Jun 2012 @ 7:27am

Well, I have something new to look up tonight.
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Killer_Tofu (profile), 8 Jun 2012 @ 7:31am

Hey Copyright Maximalists
What what? Does this ruling hurt your butt?
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Anonymous Coward of Esteemed Trolling (profile), 8 Jun 2012 @ 7:43am

Better imho
Top Southpark

Season 12: Over Logging

Season 10: Make Love, Not Warcraft

Season 5: Scott Tenorman Must Die

I can't believe I still watch that show , given the age I am, but they sure can troll !
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The eejit (profile), 8 Jun 2012 @ 7:46am

Re: Re: The beuracracy is expanding to support the expanding beuracracy.
Someone failed their Bureaucracy check with a natural 1. :p
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Sovereign Delegitimization, 8 Jun 2012 @ 7:51am

Subtle cash flow analysis nit-pick
"... in truly egregious cases, courts don't have to go through a costly trial."

Actually courts feel the additional revenue comes at too great an expense to their reputation and legitimacy.
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Cory of PC (profile), 8 Jun 2012 @ 7:52am

Re: Better imho
... Thanks for adding on to my list.
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Leigh Beadon (profile), 8 Jun 2012 @ 7:53am

i need about tree-fiddy
I'd reverse the order on those, myself. Scott Tenorman Must Die is one of the greatest episodes ever! But, still not sure if those would by my top three.... after all these years I'd have to think about. But ones that certainly bear consideration: Casa Bonita, Woodland Critter Christmas, Awesome-O, Biggest Douche In The Universe, Here Comes The Neighbourhood... crap, there are way too many... oh and, in a rare recent show of classic SP levels of brilliance, Broadway Bro-Down.
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Anonymous Coward, 8 Jun 2012 @ 7:53am

"reclaiming fair use"? Are you daft?

Fair use in parody has been long held.

Let's tar and feather the copyright system because one moronic video producer doesn't get it.
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average_joe (profile), 8 Jun 2012 @ 7:59am

Re: Hey Copyright Maximalists
What what? Does this ruling hurt your butt?

Nope. It's a great opinion for defendants with a strong fair use argument who are facing a nuisance infringement suit. The opinion is interesting procedurally too, since the court converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, but without giving the plaintiff the benefit of briefing the issues as such.
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Anonymous Coward, 8 Jun 2012 @ 7:59am

Re: i need about tree-fiddy
Whale Whores is one of my personal favorite and the boobs/heavy metal/cheesin episode.
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That Anonymous Coward (profile), 8 Jun 2012 @ 7:59am

Re:
Tell that to the poor guy who had Peanutweeter shut down. Or the guy who wrote the Seussesque parody book. Or the hundreds of other people who can't afford to stand up to the claims when the law should be on their side.

The system favors the guy with the most money who can just break the other guys bank and then gloat. Seems like a broken system.
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MrWilson, 8 Jun 2012 @ 7:59am

Re:
More than just one moronic video producer doesn't get it. It's a large chunk of the entertainment industry that intentionally doesn't get it because they don't want to change.
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average_joe (profile), 8 Jun 2012 @ 8:01am

Re:
Let's tar and feather the copyright system because one moronic video producer doesn't get it.

Unfortunately, it's the Techdirt Way to blame the whole system for one person's idiocy.
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jupiterkansas (profile), 8 Jun 2012 @ 8:02am

It makes all the difference when the judges are fans of culture.
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BentFranklin (profile), 8 Jun 2012 @ 8:04am

Win, win, on the chin!
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Anonymous Coward, 8 Jun 2012 @ 8:04am

Re: Re:
Ummm, the legal system in general works that way, that is your choice as Americans to be there. You live in a litigious society, where using the courts to intimidate people is par for the course. It's not a copyright issue, it's an issue of how Americans address their grievances, real or imagined.

Don't blame copyright for the broken legal system. That's your choice.
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Anonymous Coward, 8 Jun 2012 @ 8:09am

Re: Re: Re:
This seems to come out of left field... do you really believe that TAC had some misconception that the legal system was the land of milk and honey until it reached copyright law?
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Robert Doyle (profile), 8 Jun 2012 @ 8:10am

Re: i need about tree-fiddy
Also check out the movie by the creators - Baseketball.

Awesomeness.
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Robert Doyle (profile), 8 Jun 2012 @ 8:11am

Re:
Ok. They seem to have no problem doing it to technology because one moronic user might not get it...
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Robert Doyle (profile), 8 Jun 2012 @ 8:13am

Re: Re:
It's everybody's way. Techdirt doesn't have a patent on that ;) (or trademark, or copyright, or even dibs!)
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:Lobo Santo (profile), 8 Jun 2012 @ 8:14am

Re: Better imho
The more I watch South Park the more I bandy around the idea "what if it's all true?"...
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Anonymous Coward, 8 Jun 2012 @ 8:19am

Re: Re:
Speaking of broad generalizations...
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Anonymous Coward, 8 Jun 2012 @ 8:23am

Viacom/South Park get the high court treatment, had it been a regular Joe Blow the odds of them winning are much slimmer.
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That Anonymous Coward (profile), 8 Jun 2012 @ 8:29am

Re: Re: Re:
you seem to think I can just will myself somewhere else in the world where its better... maybe you've missed most of the stories about the copyright cartels pushing these same sorts of insane laws on everyone.

The fact there is a case where the court issued a decision without having to have a long drawn out process is actually a good thing. It gives some glimmer of hope that Fair Use can be considered before the bills mount to stupid levels, meaning the law in this area might actually be even and fair.

I was unaware that I was the lynchpin to the broken legal system, I will get right on making my choice known and making everyone behave like grownups right away.
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Anonymous Coward, 8 Jun 2012 @ 8:40am

Re: Re: Re: Re:
First off, let's say that the term "copyright cartels" pretty much tells me that you have come to a conclusion long before the discussion even starts. It's hard to discuss something when you start all the way "over there".

Second, the legal system in the US is as a result of the way the laws are written, and the way people use them. It's not an issue of copyright, it's an issue of a "sue them all" mentality that exists in the US. Suggesting that copyright is broken because of expensive court cases is entirely misleading, you are blaming the outcome and not the cause.

As a US citizen, as a voter, you bear some responsibility for the current system. You can vote to support people who are pushing to change the legal system to get rid of much of the wasteful stuff, or you can vote for those who support the status quo. That's your choice.
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Stuart, 8 Jun 2012 @ 8:46am

Re: i need about tree-fiddy
Butters Bottom Bitch.
Best ever.
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Lowestofthekeys (profile), 8 Jun 2012 @ 8:50am

Re: i need about tree-fiddy
I'm surprised neither of you mentioned "Medicinal Fried Chicken." :)
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Anonymous Coward With A Unique Writing Style, 8 Jun 2012 @ 8:54am

Re: Re: i need about tree-fiddy
Yes, I know what you are saying. : )

Best ever indeed.
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Anonymous Coward, 8 Jun 2012 @ 8:57am

Re: Re: Re: Re: Re:
And who's to say he/she doesn't vote for the people pushing to change the law? Like everyone else, he/she has one vote in sea of millions of voters.

I would gladly put those people in office if my one vote was capable of that, but here in reality I have to live with the decisions of the majority of voters.
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Paul Alan Levy (profile), 8 Jun 2012 @ 9:04am

Opinion's references to other South Park episodes and other viral videos
Not so surprising when you understand that in the federal courts of appeals, opinions are generally drafted by 25 or 26 year old law clerks who are fresh out of law school. No doubt they had fun with this opinion.
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Anonymous Coward, 8 Jun 2012 @ 9:12am

Re: Re: Re: Re: Re:
The game is rigged though, on both sides of the issue, world-fucking-wide!
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Anonymous Coward, 8 Jun 2012 @ 9:23am

Re: Re: Re: Re: Re:
And who's to say he/she doesn't vote for the people pushing to change the law? Like everyone else, he/she has one vote in sea of millions of voters.

I would gladly put those people in office if my one vote was capable of that, but here in reality I have to live with the decisions of the majority of voters.
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Anonymous Coward, 8 Jun 2012 @ 9:29am

Re: Re: Re: Re: Re:
You can vote to support people who are pushing to change the legal system to get rid of much of the wasteful stuff, or you can vote for those who support the status quo. That's your choice.

You don't know much about American politics do you? Rest assured, if someone is pushing to change things away from the status quo, the cartels (copyright and otherwise) will be certain to make sure that person doesn't make it to the ballot.
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Anonymous Coward, 8 Jun 2012 @ 9:39am

Re: Opinion's references to other South Park episodes and other viral videos
[citation needed]
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gorehound (profile), 8 Jun 2012 @ 9:53am

South Park good
Viacom MAFIAA
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Anonymous Coward, 8 Jun 2012 @ 10:02am

Re: Opinion's references to other South Park episodes and other viral videos
or maybe, just maybe, the grandkids of these old farts are finally standing up and explaining to their elders that everything they fought for when they were our age is being eroded away.

People died for our freedoms. They lost family, friends, loved ones, just to have some greedy prick try to profit under the very flag that stands for life, liberty, and the pursuit of happiness by stealing from the same people who provide the inspiration for the content creators.

If you can't figure out how to make money in this day and age, you don't deserve to be in business. Plain and simple.
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Leigh Beadon (profile), 8 Jun 2012 @ 10:33am

Re: Re: i need about tree-fiddy
Fried Chicken / Bottom Bitch...

Both highlights of the recent seasons, but nowhere near my all-time favourites.

For example, though Butters is one of the best characters on the show, Krazy Kripples was a the definitive "kids meet street culture" episode over Bottom Bitch, I think :)

"We'll have a lock-in at the rec center!"
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Killer_Tofu (profile), 8 Jun 2012 @ 10:41am

Re: Re: Hey Copyright Maximalists
Joe! How you been?
The first word in your response ('Nope') would almost make me think you were claiming to be a copyright maximalist as that is more who I was poking fun at. From your history I would actually not think of you as one. More so as somebody who puts forth an honest analysis of the law involved in and surrounding copyright issues.

I am glad to see you welcome the opinion =)
And I always welcome your well reasoned (even if I disagree with reasons) debate. Arms, legs, ships, and space stations above the AC ad homs I am used to seeing round these here parts of the interwebs.
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harbingerofdoom (profile), 8 Jun 2012 @ 11:07am

Re: Re:
the definition of the word ironic would like to have a brief discussion with you.
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Anonymous Coward, 8 Jun 2012 @ 11:26am

Now can the court sue Brownmark for wasting tax payer resources. I would like to see the tax payers recoupe some of public funds used to facilitate this apparent copyright troll's shake down.
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Anonymous Coward, 8 Jun 2012 @ 1:07pm

Re: Re: Re: Re: Re: Re:
"cartels".

What an infantile way to describe business.
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TDR, 8 Jun 2012 @ 1:33pm

Re: Re: Re: Re: Re: Re: Re:
No, Brown AC 43. It's an accurate term because it accurately describes their often extortionate and anti-competitive practices. You just can't accept that entire companies can be so deathly afraid of change and of losing control (aka the MAFIAA) that they will do anything to prevent it, no matter what the collateral damage might be. The internet has just one thing to say to you types, and in the spirit of this thread's topic, I think Cartman's words fit nicely:

"RESPECT MY AUTHORITAAAHHHH!!"
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Anonymous Coward of Esteemed Trolling (profile), 8 Jun 2012 @ 2:05pm

I feel the need to watch them now
"Season 5: Scott Tenorman Must Die" is probably the best ever.
I really enjoyed that twist at the end.

For internet people , not yet properly exposed to the comedy of SP.
"Over Logging" & "Make Love, Not Warcraft" are hilarious for them.
As for the other episodes mentioned..... Great taste in episodes

BUT ..... did we all forget ?
Season 11: Cartman Sucks
don't wanna post spoiler , but remember
Cartman taking photos of Butters....
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Leigh Beadon (profile), 8 Jun 2012 @ 2:10pm

Re: I feel the need to watch them now
Heh yeah that's a great one. Also, The Death Of Eric Cartman. Pretty much any Cartman-Butters pair-up is instant gold (which is why Awesome-O and Casa Bonita are so high on my list too). I also really like how the show has let their relationship evolve into a a sort of Bart-Milhouse-esque friendship
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JMT (profile), 8 Jun 2012 @ 3:14pm

Re: Re: Re: Re: Re:
"First off, let's say that the term "copyright cartels" pretty much tells me that you have come to a conclusion long before the discussion even starts."

Your statement is complete nonsense. Perhaps you're not familiar with TAC's commenting, but it's pretty obvious that he's been having "the discussion" for quite some time and has come to a conclusion based on that. It's arrogant of you to assume he's just walked in the door and taken a side.

"Second, the legal system in the US is as a result of the way the laws are written, and the way people use them. It's not an issue of copyright, it's an issue of a "sue them all" mentality that exists in the US. Suggesting that copyright is broken because of expensive court cases is entirely misleading, you are blaming the outcome and not the cause."

You're accusing him of conflating two issues incorrectly, but you're actually doing that yourself. The copyright system isn't broken because of the legal system or the US's litigious nature, it's broken because it has been continuously and vigorously abused by corporations and their pet politicians for many decades. The broken legal system has simply made their work easier.
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JMT (profile), 8 Jun 2012 @ 3:18pm

Re: Re:
Yes, this is the first ever copyright story on Techdirt, and Mike's decided to base his entire opinion on this story alone...
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Anonymous Coward, 8 Jun 2012 @ 5:11pm

Am I the only one that noticed this part of the decision?

And as we noted above, the district court required only the two videos to adjudicate this issue, especially in light of Brownmark�s failure to make any concrete contention that the South Park episode reduced the financial returns from the original WWITB video.

"Your Honor, listening to a song before making a purchase decision is fair use. Music is the only product in the world that the purveyor expects you to purchase without letting you see or sample it in full before you buy and with no refund even if it fails to perform as advertised. The MAFIAA cannot show that me downloading that song reduced their financial return from it because I had no intention of purchasing it without first previewing it in full to decide if it was worth the price. Their failure to adapt to a changing marketplace and failure to produce valuable content has reduced their financial return, not the fact that I can preview their songs for free."
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Anonymous Coward, 8 Jun 2012 @ 7:02pm

"Some copyright maximalists like to claim that fair use is only a defense to infringement, and thus can only be raised at trial, not earlier in the process."

Fair Use is a "defense", and specifically an "affirmative defense", that is raised by an alleged infringer in his/her "answer" to a copyright holder's "complaint". IOW, it is presented at the outset of court proceedings during the initial pleadings by the plaintiff and defendant.

"Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial."

As noted above, fair use is an affirmative defense that is first raised in a defendant's "answer" to a plaintiff's "complaint". Even in non-egregious cases discovery may create an evidentiary record where a case is disposed of pre-trial because no contested issues of fact remain for consideration by the "trier of fact", which is typically a jury.
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Anonymous Coward, 8 Jun 2012 @ 11:59pm

Re:
Errr... That might be true, to a point, but Viacom was the defendant here. Brownmark was the one bringing suit.
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Mike Masnick (profile), 9 Jun 2012 @ 12:16am

Re:
Fair Use is a "defense", and specifically an "affirmative defense", that is raised by an alleged infringer in his/her "answer" to a copyright holder's "complaint". IOW, it is presented at the outset of court proceedings during the initial pleadings by the plaintiff and defendant.

The issue is whether it is only a defense or a right. What the court is starting to recognize is that it's a right.
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That Anonymous Coward (profile), 9 Jun 2012 @ 2:31am

Re: Re: Re: Re: Re:
your mom never hugged you as a child did she?
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That Anonymous Coward (profile), 9 Jun 2012 @ 2:32am

Re: Re: Re: Re: Re: Re:
Thank you for doing the heavy lifting :)
That just leaves me to insult the AC, and my work here is done.
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That Anonymous Coward (profile), 9 Jun 2012 @ 2:34am

Re: Re: Re: Re: Re: Re:
for the record... I have a penis. :D
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That Anonymous Coward (profile), 9 Jun 2012 @ 2:37am

Re: Re: Re: Re: Re: Re: Re:
So the drug cartels buy off government officials to look the other way at their operations and its bad.
But the entertainment cartels buy off government officials to look the other way and its okay.

Drug cartels use guns and murder.
Entertainment cartels use lawsuits and misinformation.

They operate like a cartel, they are a cartel...

Do you have a better term for a group of companies in the same business who band together to get better treatment by hook or by crook?
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Anonymous Coward, 9 Jun 2012 @ 5:25pm

Re: Re:
>Unfortunately, it's the Techdirt Way to blame the whole system for one person's idiocy.

Wait, what? Isn't that the RIAA's policy to tar and feather? As in, one person downloads a song; assume the industry's doomed and everyone else is a filthy pirate? Therefore we have to jack up the statutory penalties, blank media levies and copyright lengths?
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hierno, 11 Jun 2012 @ 5:43am

Re: Re: Re: Re: Re: Re:
The election choices all stink to begin with, there rare are any good voting options outside of going out and running yourself -- assuming you have the millions necessary to do so.
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