This is one of the dumbest defense arguments anyone could raise.
When you think about these cases, think about them rationally. To make it pretty simple: Copyright is exclusively a federal issue. That is why you have to bring copyright claims in federal court. The reason being that you don't want copyright protection to vary from state to state.
Obscenity is a purely local community standard. What is "obscene" in Bibleburg, Mississippi might be completely run-of-the-mill in Las Vegas or Miami.
So, you can't have copyright protection as a patchwork of being protectable in one place, but not another, and over that hill, yonder, it is protected, but not here in this neighborhood.
Anyone who espouses the theory that copyright protection has any relationship to obscenity is a) uneducated on the law, b) lacks the simply ability to use Google c) is so abjectly fucking stupid that they should be sterilized to keep more idiots from populating the earth.
Marc John Randazza (profile), 25 Jun 2012 @ 11:52am
Re: "the carreon effect"
I think it is unfair to call it the "Carreon Effect" -- not just because I still (please forgive me for this) like Chas. But, because the effect that Carreon is experiencing is one that already has a name -- it is named after the guy who already sued the entire internet.
Marc John Randazza (profile), 18 Jun 2012 @ 6:29pm
Re:
I think comparing this to a lawn covered in firearms is a bit much.
But, a better analogy is this: You lend your car to your roommate. Your friend goes out and uses the car to loot someone's house. Are you liable? Probably not. You had no clue he was going to do that.
But then, you confront him. You tell him that you know he used your car to transport all kinds of stolen goods. You tell him "that's not cool, man, I could get in trouble."
The next day, he asks you for the keys and you say "yeah, sure, go ahead." And he does it again.
Different story?
How about the third, fourth, or fifth time?
At some point, you cross the line, right? The unresolved question is "when?"
Marc John Randazza (profile), 18 Jun 2012 @ 12:20pm
Re: Re: The EFF is lying
The TJ Hooper case stands for the proposition that it is the province of the court to recognize duties in negligence cases -- even new ones that have not existed before.
You focus on the legal rule, not the boat. If you focus on the boat, you'll be confused. If you focus on the legal rule, you'll understand.
Marc John Randazza (profile), 18 Jun 2012 @ 10:19am
The EFF is lying
Mike,
Can I make a little request? You state in your post that you know me and like me (thanks, its mutual). You know my email address. You know my phone number. You have the right to use either one.
If you're going to mention me in a piece, you think you could take 5 minutes to ask for comment? It might actually help you make your post accurate.
1) If you look at the case, you'll find that I am NOT counsel in the Liberty v. Tabora case in New York. Marco Santori is representing Liberty in that case.
2) The EFF is lying, not misrepresenting, not fibbing, lying, about the negligence theory in the case. It has nothing, whatsoever to do with open wifi. Nothing. Nada. Not even mentioned. The only place it is mentioned is in the EFF's lying brief in which they claim that is the issue.
The real story is that Tabora knew that Whetstone was using his internet connection for piracy. The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.
You see? Nothing to do with open WiFi whatsoever.
So the court won't be giving a "clear statement" on the open Wifi theory. Not at all. Because the EFF is lying to try and fool bloggers and journalists who are too lazy to actually look at the case.
It might be good for your credibility to make your report something more than a parroting of the lies.
Now that said, you still might philosophically disagree with the theory -- and that's fair enough. But for fucks sake, at least build it on a foundation of truth and accuracy.
Marc John Randazza (profile), 28 Sep 2011 @ 8:23am
Re: Re: "Pirate Mike"
Anonymous Coward wrote "Pirate Mike pretends like this is not the law or the law's purpose, but the Supreme Court couldn't be anymore clear."
I don't think that is a) accurate, b) fair. Mike does have some views on copyright that diverge from mine, and apparently yours. However, I don't think that he disagrees with the "promote the progress" portion of copyright law. Mike simply takes the position that the current state of copyright law does not do that.
I also don't think that Mike is "pro piracy." He simply thinks that some actions are not piracy, which I (and you, I guess) think they are. He also takes the position that if they are piracy, the deck and the consequences are too stacked against the defendant.
There is plenty of room for respectful disagreement with him. Don't be a douche.
Marc John Randazza (profile), 27 Sep 2011 @ 7:26am
Re: Re: Also please deal with false DMCA takedowns
DannyB wrote:
My favorite remedy would be that the statutory damages for each false DMCA takedown are equal to the statutory damages for each instance of copyright infringement.
What is that, $150,000 per false DMCA takedown filed?
It also might not hurt to put SOME TEETH into that "under penalty of perjury" thingy.
Agreed. While Lenz v. Universal shows that section 512 can bite back, it is so rare because the law is not really designed to care about fair use. I'm not sure about the limit you suggest (although I'm not entirely against it), but some very real penalties for false, and even erroneous, DMCA takedowns are in order.
Marc John Randazza (profile), 27 Sep 2011 @ 6:36am
Fair Use
The problem with fair use is that it has few barbs. During all the talk about copyright reform, i've been consistently disappointed to see no greater protections for fair use. I'd like to see us follow Brazil's lead, with penalties for hindering fair use. A national anti-slapp bill would kill two birds with one stone, but giving Section 107 bigger balls, with a mandatory attorneys fees provision for defendants who successfully raise a fair use defense, that would be a thing of beauty.
Marc John Randazza (profile), 26 Sep 2011 @ 10:44pm
Re: Re: The distinction
It is pretty easy, using existing law. If there are "substantial non-infringing uses," and the infringing uses are merely incidental to the technology, then no problem.
If the use is clearly to promote infringement, or if it outwardly rewards infringement, then you don't even need your obvious-meter.
This is why VCRs are permissible, and why Grokster isn't. It is why Limewire lost its case, and why I predict Hotfile will as well. Meanwhile, I couldn't possibly see Dropbox losing a Hotfile-style case.
Marc John Randazza (profile), 19 Aug 2011 @ 3:52pm
Re: Re:
dwg wrote: "What about going to the source of the open-ness, sir? In other words, how about those who ship routers in an open state? I agree with the framework you lay out in the ether for negligence liability, but I just don't see the duty on the part of the router recipient/owner, and I don't see the foreseeability at all. Is it a case-by-case basis, where Granny gets a pass, but a 16-year-old is liable? Because that seems incredibly shaky. But on the part of the router seller?
I think you grasp the concept of negligence well here, but you don't seem to agree with it. The fact is that granny and a 16 year old just might have different windows of liability. I could certainly see a court saying "this 90 year old woman had no clue, and a reasonably prudent person in her position wouldn't have a clue." On the other hand, a 28 year old computer network engineer would have a clue.
As far as holding the router manufacturer liable goes, I don't think you could push it that far. I hear that question a lot, and it is simply a straw man. By that virtue, how far back would we go? Could we hold the guy in China who dug the silicon out of the ground liable?
Negligence is often a case-by-case analysis. One person might be negligent and in another similar case, the other defendant would not be. But, no, I don't think the router seller would be.
Marc John Randazza (profile), 19 Aug 2011 @ 2:28pm
With the utmost sincerity, I appreciate the critique of the theory. I may disagree, but we can spar with our friends, and choosing them based upon how much they agree with us is a shitty way to set up a meaningful existence.
I disagree with a few of the opinions in this piece though. I am uncertain how my theory " is actually doing significant harm to causes [I] claim[] to support." I disagree with the claim that mine is an anti First Amendment position. You're not going to find a more ardent supporter of First Amendment rights than me. In fact, my engagement letters make it clear that I will withdraw from representation of a client if their interests conflict with the First Amendment. In fact, my firm's policies operate on a modified version of the laws of robotics, in which the First Amendment is the prime protected party.
I simply see no free speech issue with holding an open wifi operator liable for negligence, if the harm is forseeable. The question for the court may very well be whether it was forseeable, and I am prepared to meet that challenge. I even expect that I will find myself standing across the aisle from people I consider to be my friends and allies in other fights.
But, I stand behind the theory. I respect the dissent from it. But come on, you can't say that holding someone responsible on a "you break it, you buy it" theory does harm to the First Amendment. Don't diminish your other fair and reasonable arguments by throwing that out there to see if it sticks. It does not.
Despite that, I do think that this article presents the most measured, professional, and educated view of the opposing view that I have read thus far. Let us see where the marketplace of ideas and the courts lead us, because I think that this debate is long from over. Should it pan out that the theory is eventually discredited, I will feel that it was still a worthwhile endeavor to present it.
On the post: Is Malibu Media About To Become The Righthaven Of Porn Trolls?
Re: Is it even copyrightable?
When you think about these cases, think about them rationally. To make it pretty simple: Copyright is exclusively a federal issue. That is why you have to bring copyright claims in federal court. The reason being that you don't want copyright protection to vary from state to state.
Obscenity is a purely local community standard. What is "obscene" in Bibleburg, Mississippi might be completely run-of-the-mill in Las Vegas or Miami.
So, you can't have copyright protection as a patchwork of being protectable in one place, but not another, and over that hill, yonder, it is protected, but not here in this neighborhood.
To give you the tl;dr version: http://randazza.files.wordpress.com/2012/08/doc-38-1-proposed-amicus.pdf
Anyone who espouses the theory that copyright protection has any relationship to obscenity is a) uneducated on the law, b) lacks the simply ability to use Google c) is so abjectly fucking stupid that they should be sterilized to keep more idiots from populating the earth.
On the post: Miami Heat Owner Sues Blogger & Google Over 'Unflattering' Photo
Re: "the carreon effect"
On the post: Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law
Re:
But, a better analogy is this: You lend your car to your roommate. Your friend goes out and uses the car to loot someone's house. Are you liable? Probably not. You had no clue he was going to do that.
But then, you confront him. You tell him that you know he used your car to transport all kinds of stolen goods. You tell him "that's not cool, man, I could get in trouble."
The next day, he asks you for the keys and you say "yeah, sure, go ahead." And he does it again.
Different story?
How about the third, fourth, or fifth time?
At some point, you cross the line, right? The unresolved question is "when?"
On the post: Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law
Re: Re: The EFF is lying
You focus on the legal rule, not the boat. If you focus on the boat, you'll be confused. If you focus on the legal rule, you'll understand.
On the post: Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law
Re: Re: The EFF is lying
On the post: Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law
The EFF is lying
Can I make a little request? You state in your post that you know me and like me (thanks, its mutual). You know my email address. You know my phone number. You have the right to use either one.
If you're going to mention me in a piece, you think you could take 5 minutes to ask for comment? It might actually help you make your post accurate.
1) If you look at the case, you'll find that I am NOT counsel in the Liberty v. Tabora case in New York. Marco Santori is representing Liberty in that case.
2) The EFF is lying, not misrepresenting, not fibbing, lying, about the negligence theory in the case. It has nothing, whatsoever to do with open wifi. Nothing. Nada. Not even mentioned. The only place it is mentioned is in the EFF's lying brief in which they claim that is the issue.
The real story is that Tabora knew that Whetstone was using his internet connection for piracy. The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.
You see? Nothing to do with open WiFi whatsoever.
So the court won't be giving a "clear statement" on the open Wifi theory. Not at all. Because the EFF is lying to try and fool bloggers and journalists who are too lazy to actually look at the case.
It might be good for your credibility to make your report something more than a parroting of the lies.
Now that said, you still might philosophically disagree with the theory -- and that's fair enough. But for fucks sake, at least build it on a foundation of truth and accuracy.
On the post: Righthaven Screws Up (Again); Appeal Dismissed
The Case Style = Awesome
On the post: Righthaven Desperately Trying To Avoid Paying Legal Fees
Re: beat them
On the post: Righthaven Loses (Big Time) In Colorado As Well
Re: Re: "Pirate Mike"
I don't think that is a) accurate, b) fair. Mike does have some views on copyright that diverge from mine, and apparently yours. However, I don't think that he disagrees with the "promote the progress" portion of copyright law. Mike simply takes the position that the current state of copyright law does not do that.
I also don't think that Mike is "pro piracy." He simply thinks that some actions are not piracy, which I (and you, I guess) think they are. He also takes the position that if they are piracy, the deck and the consequences are too stacked against the defendant.
There is plenty of room for respectful disagreement with him. Don't be a douche.
On the post: Mainstream News Article Talks Up The Importance Of Fair Use
Re: Re: Also please deal with false DMCA takedowns
My favorite remedy would be that the statutory damages for each false DMCA takedown are equal to the statutory damages for each instance of copyright infringement.
What is that, $150,000 per false DMCA takedown filed?
It also might not hurt to put SOME TEETH into that "under penalty of perjury" thingy.
Agreed. While Lenz v. Universal shows that section 512 can bite back, it is so rare because the law is not really designed to care about fair use. I'm not sure about the limit you suggest (although I'm not entirely against it), but some very real penalties for false, and even erroneous, DMCA takedowns are in order.
On the post: Mainstream News Article Talks Up The Importance Of Fair Use
Fair Use
On the post: House Version Of PROTECT IP To Cover Cyberlockers Too
Re: Re: The distinction
If the use is clearly to promote infringement, or if it outwardly rewards infringement, then you don't even need your obvious-meter.
This is why VCRs are permissible, and why Grokster isn't. It is why Limewire lost its case, and why I predict Hotfile will as well. Meanwhile, I couldn't possibly see Dropbox losing a Hotfile-style case.
On the post: Google Kills Tricorder Android App After CBS Sends A DMCA Takedown?
Why not file a Counter Notification?
http://randazza.wordpress.com/2008/08/21/the-dmca-she-bite-sometimes-lenz-v-univers al/
On the post: No, Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000
Re: Re:
I think you grasp the concept of negligence well here, but you don't seem to agree with it. The fact is that granny and a 16 year old just might have different windows of liability. I could certainly see a court saying "this 90 year old woman had no clue, and a reasonably prudent person in her position wouldn't have a clue." On the other hand, a 28 year old computer network engineer would have a clue.
As far as holding the router manufacturer liable goes, I don't think you could push it that far. I hear that question a lot, and it is simply a straw man. By that virtue, how far back would we go? Could we hold the guy in China who dug the silicon out of the ground liable?
Negligence is often a case-by-case analysis. One person might be negligent and in another similar case, the other defendant would not be. But, no, I don't think the router seller would be.
On the post: No, Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000
I disagree with a few of the opinions in this piece though. I am uncertain how my theory " is actually doing significant harm to causes [I] claim[] to support." I disagree with the claim that mine is an anti First Amendment position. You're not going to find a more ardent supporter of First Amendment rights than me. In fact, my engagement letters make it clear that I will withdraw from representation of a client if their interests conflict with the First Amendment. In fact, my firm's policies operate on a modified version of the laws of robotics, in which the First Amendment is the prime protected party.
I simply see no free speech issue with holding an open wifi operator liable for negligence, if the harm is forseeable. The question for the court may very well be whether it was forseeable, and I am prepared to meet that challenge. I even expect that I will find myself standing across the aisle from people I consider to be my friends and allies in other fights.
But, I stand behind the theory. I respect the dissent from it. But come on, you can't say that holding someone responsible on a "you break it, you buy it" theory does harm to the First Amendment. Don't diminish your other fair and reasonable arguments by throwing that out there to see if it sticks. It does not.
Despite that, I do think that this article presents the most measured, professional, and educated view of the opposing view that I have read thus far. Let us see where the marketplace of ideas and the courts lead us, because I think that this debate is long from over. Should it pan out that the theory is eventually discredited, I will feel that it was still a worthwhile endeavor to present it.
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