And apparently there are still attorneys out there who haven't learned the Don't-Sue-Big-Players-Over-Non-IP-User-Generated-Content-Because-They-Are-Solidly-Immune-From-Liabil ity-and-It-Will-Only-Make-More-Work-For-You-and-Make-You-Look-Like-You're-Out-Of-Your-Element Rule.
1) Archive has only the one copy, that it's lending to the limited number of people who go to the site (e.g., monthly uniques / global population [?])
2) Clips split into 30 sec. segments, for the upcoming Fair Use argument.
3) There's a lot of goodwill for the Archive folks already, so potential lawsuits may backfire.
4) Precedent of Congressional Intervention already in place.
5) Documenting history, and other laudable goals
It doesn't seem like the school is debating the facts as presented . . .
That's because they aren't allowed to debate the facts on a Motion to Dismiss. The facts are taken as true for the purpose of the motion; the issue is whether the facts as pled are enough to state a claim.
But ... that the judge took "pains" (quoting Venkat) to make it clear the allegedly facts may not be true, tends to indicate the court is already wary of the veracity of the plaintiff's claims. Judges do not have to couch the ruling in such terms, and often do not.
There is a section of the DMCA allowing for damages, costs and attorney fees for "knowingly materially misrepresent[ing]" that material is infringing. 17 USC §512(f)
Problem is that courts have interpreted that to require a showing of something like "subjective intent" which is nearly impossible to prove (especially if the actor is a machine), so victimized plaintiffs rarely (if ever) win on a claim for DMCA abuse.
All we need is for Congress to give it some teeth: "objective" intent, for starters. Easy. Right? Sure, Congress is just chomping at the bit to charge through the phalanx of **AA lobbyists to change a statute in a way that may help the huddled masses.
OK G, I won't try make a wager, and I no longer know any law professors, but it's published 9th Cir. -- my hood, so I'll keep an eye out to see if it makes it into the textbooks.
I won't get angry all over again. I won't get angry all over again. I won't get angry all over again. I won't get angry all over again. I won't get angry all over again. Must... find ... Zen...
Dude! This is, like, the Best ... Case ... Ever ... for instilling in law students' minds the somewhat nebulous concept of judicial estoppel. Who could forget the lesson learned ...
What's really funny is objections are for stuff that opposition says that are ...legally objectionable. Objecting to the judge is inappropriate (and doesn't even make sense).
She demanded millions in damages (and went with actual damages rather than statutory -- which you don't often see).
That's likely because statutory damages are not available to a plaintiff unless he/she registered the copyright within three months of "publication" of the work, or in any event, before infringement occured. 17 USC §412. The irony being that she at least got something right.
Deferring to the IT-Folks' comments re legacy, redundancy and chain of evidence, let's get back to the crux:
They apparently told the Court, under oath, that 40TB was their maximum worldwide storage capacity. That represents either a massive lie, or unmitigated incompetence, or both.
(Or, perhaps the 40TB just represents what's left when not accounting all the downloaded porn on DEA servers.)
... he admitted elsewhere that he ended up making decisions based on how he would feel if it was his patent at stake, rather than what the law actually says ...
Attorneys are generally barred from making "Golden Rule" arguments, i.e. asking jurors to put themselves in plaintiff's shoes. Damages are supposed to be compensatory and objective, so an attorney's Golden Rule argument is pretty much manifestly improper. This objectivity requirement is made clear to jurors as well.
Dunno if we'll see JNOV, mistrial, or what, but I've got $5 this case is not yet heading to the appeals court. Stuff to be dealt with below first.
On the post: Anti-Islam Movie Actor Sues Producers, YouTube To Have Film Removed
Re: Re: CDA 101
Yo :Lobo, I tried to pronounce it, but it only led to more aspirin.
On the post: Anti-Islam Movie Actor Sues Producers, YouTube To Have Film Removed
CDA 101
On the post: Anti-Medical Marijuana Committee Fails To Register Published URL, Hilarity Ensues
Some Pretzel Logic...
On the post: Why The Internet Archive Says It Can Show You Every TV News Program
Hedging 101
1) Archive has only the one copy, that it's lending to the limited number of people who go to the site (e.g., monthly uniques / global population [?])
2) Clips split into 30 sec. segments, for the upcoming Fair Use argument.
3) There's a lot of goodwill for the Archive folks already, so potential lawsuits may backfire.
4) Precedent of Congressional Intervention already in place.
5) Documenting history, and other laudable goals
Conclusion: Go for it and see what happens.
On the post: Demanding A Student's Facebook Password A Violation Of First Amendment Rights, Judge Says
Re:
On the post: Demanding A Student's Facebook Password A Violation Of First Amendment Rights, Judge Says
That's because they aren't allowed to debate the facts on a Motion to Dismiss. The facts are taken as true for the purpose of the motion; the issue is whether the facts as pled are enough to state a claim.
But ... that the judge took "pains" (quoting Venkat) to make it clear the allegedly facts may not be true, tends to indicate the court is already wary of the veracity of the plaintiff's claims. Judges do not have to couch the ruling in such terms, and often do not.
My $5 says it settles before we find out.
On the post: Two Copywrongs Don't Make A Right, But We Still Need A Way To Combat False Takedown Notices
Start with Giving the DMCA Misuse Section Teeth
Problem is that courts have interpreted that to require a showing of something like "subjective intent" which is nearly impossible to prove (especially if the actor is a machine), so victimized plaintiffs rarely (if ever) win on a claim for DMCA abuse.
All we need is for Congress to give it some teeth: "objective" intent, for starters. Easy. Right? Sure, Congress is just chomping at the bit to charge through the phalanx of **AA lobbyists to change a statute in a way that may help the huddled masses.
On the post: Congressional Reps Question Feds Over Botched Domain Seizures
Re: Re: God ICE burns me up...
On the post: Marilyn Monroe's Persona Belongs To The Public; Estate Can't Retroactively Move Her To California
Re: Re: Textbook Judicial Estoppel
On the post: Congressional Reps Question Feds Over Botched Domain Seizures
God ICE burns me up...
On the post: Marilyn Monroe's Persona Belongs To The Public; Estate Can't Retroactively Move Her To California
Textbook Judicial Estoppel
On the post: Songwriter Wins Copyright Case In Spite Of Herself
Re:
On the post: Songwriter Wins Copyright Case In Spite Of Herself
Re:
On the post: Apple/Samsung Jurors Admit They Finished Quickly By Ignoring Prior Art & Other Key Factors
Re: Re: Re: Hence the "No Golden Rule Argument" Rule ...
On the post: Songwriter Wins Copyright Case In Spite Of Herself
That's likely because statutory damages are not available to a plaintiff unless he/she registered the copyright within three months of "publication" of the work, or in any event, before infringement occured. 17 USC §412. The irony being that she at least got something right.
On the post: DEA Gets Lawsuit Dismissed Because It Couldn't Cope With Two Terabytes Of Evidence
Bottom line...
They apparently told the Court, under oath, that 40TB was their maximum worldwide storage capacity. That represents either a massive lie, or unmitigated incompetence, or both.
(Or, perhaps the 40TB just represents what's left when not accounting all the downloaded porn on DEA servers.)
On the post: Apple/Samsung Jurors Admit They Finished Quickly By Ignoring Prior Art & Other Key Factors
Re: Hence the "No Golden Rule Argument" Rule ...
On the post: Apple/Samsung Jurors Admit They Finished Quickly By Ignoring Prior Art & Other Key Factors
Hence the "No Golden Rule Argument" Rule ...
Attorneys are generally barred from making "Golden Rule" arguments, i.e. asking jurors to put themselves in plaintiff's shoes. Damages are supposed to be compensatory and objective, so an attorney's Golden Rule argument is pretty much manifestly improper. This objectivity requirement is made clear to jurors as well.
Dunno if we'll see JNOV, mistrial, or what, but I've got $5 this case is not yet heading to the appeals court. Stuff to be dealt with below first.
On the post: Apparently I'm A Google Shill And I Didn't Even Know It
Re: What's stupid...
On the post: Oxford Professor Says Mankind Is Ethically Obligated To Create Genetically Engineered Babies
Gattaca! Gattaca!
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