Considering that these are the official annotations, released by the state itself as part of its official code of Georgia, then, yes, they are a part of the law.
Law students learn this on the first day of law school: The statutes are "law," the comments are not. The comments can be persuasive authority, but they can never be primary authority, i.e., "law."
See, for example:
Although the Official UCC Comments following the code provisions are not law, they are persuasive authority concerning interpretation of the statutory language.
Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683, 687 (Tex. App. 2003).
Comments accompanying the uniform acts are deemed to be “persuasive authority” in interpreting Kentucky statutes.
Jefferson Cnty. Bd. of Educ. v. Estate of Cowles, 982 S.W.2d 224, 226 (Ky. Ct. App. 1998).
Primary authority, such as statutes, are "law" and are in the public domain. But secondary authority such as comments, annotations, treatises, model codes, law review articles, dictionaries, etc. are not "law" and are not public domain. The fact that courts rely on them as persuasive authority doesn't make them suddenly public domain.
And they call it "the official code of Georgia." In other words, yes, the state of Georgia calls its own annotated code the "official code of Georgia." So, yes, the annotated code is law.
This is just embarrassing. The official version you linked to is NOT the annotated version. Can you really not tell the difference between them?
Look at Section 1-1-1 in the linked-to version:
§ 1-1-1. Enactment of Code
The statutory portion of the codification of Georgia laws prepared by the Code Revision Commission and the Michie Company pursuant to a contract entered into on June 19, 1978, is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. The statutory portion of such codification shall be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials pursuant to the contract and shall be published by authority of the state pursuant to such contract and when so published shall be known and may be cited as the "Official Code of Georgia Annotated."
After that, there's no annotations.
But if you actually look at the annotated version, you'll see annotations including editor's notes, judicial decisions, cross references, and law reviews. This lawsuit is over those annotations--the ones you can't even identify correctly.
In the federal context, the government can be assigned a copyright, but it cannot be not vested with a copyright ab initio. But that doesn't apply here, and the state can own a copyright either by initial vesting or by assignment.
Annotations are not law, Mike. But I love how in this context you feel comfortable saying there should be no copyright, while you're too ashamed to just admit you feel that way generally. Of course, you have to intentionally lie about annotations being law to get there, but you feel safe in saying it despite the lie. Good for you! Maybe one day you'll tell us how you really feel about it. Then again, you probably won't. For whatever readon, you just can't come clean.
You shouldn't try to make it illegal. You shouldn't sue your biggest fans. You shouldn't go after people for obviously non-commercial use of works. You shouldn't put ridiculous statutory damages on works. You shouldn't tax blank media. You shouldn't pull works down from the internet because a few seconds in the background contain some copyright-covered music. You shouldn't try to pass laws that limit free expression.
All those "shouldn'ts," yet you still can't tell us whether artists and authors shouldnt have copyrights. Funny that.
The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
Don't throw Cathy Gellis under the bus. She represented you. You need to take responsibility for everything in the brief. If you "did not expect in anyway that the ruling would turn on" your argument, you shouldn't have wasted the court's time with it. The point of an amicus brief is to help the court decide the legal issues that are actually before it. You're admitting that you argued irrelevant issues. If you were a party to that lawsuit, I imagine the other side would have moved to strike and for sanctions. Your arguments were so frivolous that the court probably would have granted the motions. Congress' ACTUAL view on intermediary liability is that the CDA doesn't apply in copyright cases. You weren't offering Congress' view; you were offering your own, as baseless as it was.
We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
You wanted to make the court aware of other issues that were not before it? How does that possibly help the court?
You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
Seems like you wasted the court's time by making completely frivolous and irrelevant arguments. I'd be ashamed to back that brief. I couldn't rationalize wasting precious judicial resources with arguments that have precisely zero chance of helping the court. But that's just me.
What else is there to say? Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
Care explaining why the 1st would be applicable and not the 5th which actually addresses due process?
Are you saying that Rightscorp's due process rights should have been the issue? Do you mean procedural or substantive due process? I'm not sure what you're even getting at.
Don't know why you feel the need to rush to insult.
I don't think I rushed to insult. No need for the dramatics. If you'd like me to take a nicer tone, you could start by removing the IP block you have on my home address. I am a financial backer of your site, after all. It's been almost two years now that you subject me to your mechanism for prior approval before posting. If you were the government, it would be a prior restraint. You fault the government for this quite frequently, yet you do the same thing yourself. Of course, it's futile and easily circumvented. You fault others for doing futile and easily circumvented things as well, yet you do it yourself.
I see your point in separating out the petition with what they then do with the info. In fact, I may be convinced that this ruling does make sense now.
I'm still troubled by the fact that the petitioning is clearly to abuse the judicial system, but I can see how that can be dealt with at a later stage.
It's not using the 512(h) subpoena mechanism for a purpose it was not intended. While two other circuits have interpreted in the way you like (in that it does not apply to conduits), the Ninth Circuit has not. Offering to settle with someone when there is evidence that they wronged you is not extortion. I get that the evidence is not dispositive. That doesn't make it abuse or extortion. You said above that "(f)inancially penalizing those who are guilty of breaking the law is perfectly reasonable." Can you point to a single post of yours where you defended the rightholder's actions in protecting its copyright as "perfectly reasonable"? I don't recall a single time.
Petitioning a court is a first amendment issue? That is quite the stretch, sounds more like due process which would be the fifth.
A constitutional law scholar, I see.
First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Anti-SLAPP: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
If EFF were "petitioning the court" solely for the sake of abusing the legal system to identify anonymous individuals in order to shake them down for cash, rather than for the purpose of actually filing a lawsuit... well, yeah, I'd have a problem with it.
They are asking the court for the subpoenas so they can identify the subscribers. That's the purpose of the subpoenas. It's not an ulterior motive. It's a proper motive. Whether they sue the unmasked subscribers, or whether they offer to settle for some amount of money, matters not.
I still don't see how abusing the court system just to identify anonymous individuals for the sake of extorting them is legitimately "petitioning the court" under the First Amendment, but alas, it's clear that the court says I'm wrong. And I'm perfectly willing to admit that the court disagrees with me.
Because everyone has a First Amendment right to petition the court. Requesting a subpoena falls under that protection. Are you seriously suggesting that Rightscorp should not be able to petition the court? I get that you don't like what they're doing, but I find it hilarious that you'd deny them the constitutional right of petition. The fault in your conspiracy theory approach is that you're not separating out asking the court to take action vs. the merits of that request. You have a right to ask the court for something, even if the court ultimately denies the request and sanctions you for being frivolous. This is basic, simple stuff.
And did the court there grant the motion to sanction Rightscorp? Nope. Because the law on DMCA subpoenas is not settled in that circuit. Same thing here.
Their stock price is also gloating from this massive victory you speak of - $0.074...down 4%.
Congratulations, dipshit.
Nice straw man. Who cares about the share price? Not me. I think they're going to continue losing on the DMCA subpoena argument. That's a completely separate issue from whether they have a First Amendment right to seek those subpoenas from the court in the first place. It's amazing to me--simply amazing--how you guys turn off your concerns about constitutional rights just because you don't like somebody. Double standard.
In the earlier post, Mike made the unsupported claim: "But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech."
In Mike's view of the First Amendment and the Anti-SLAPP statute, petitioning the court is not protected activity.
In the comments, I said: "Yeah, that's one of the funnier things Mike has ever claimed. Funny how blinded he is by his own double standards. Funny too how he completely ignores the part of the First Amendment (and the anti-SLAPP statute) that refers to the right of petition, and he pretends like the 512(h) thing is settled law when the Ninth Circuit has never addressed it. Reporting! Analysis! Techdirt!"
Now we have the court completely rejecting Mike's position. The point is so obvious, the court spends only three sentences discussing it: "There is no question that the complained of conduct satisfies the first prong of the anti-SLAPP statute. The entire claim is based on Defendants’ representations to various federal courts in order to convince those courts to issue subpoenas. This kind of action is specifically defined as protected action by § 425.16(e)."
Does Mike correct his mistake in ignoring the right to petition secured by the First Amendment and protected by the Anti-SLAPP statute? Of course not. He doubles down: "But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp's free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law."
It wasn't a "huge stretch" at all. There was "no question." People have a First Amendment right to petition the courts for redress. It is an important and fundamental right. But Mike doesn't think copyright owners and agents should have that right. He can't even understand how the First Amendment is implicated at all.
Hilarious!
Just imagine how freaked out Mike would be if, say, the MPAA argued that the EFF couldn't even petition the court. He would go absolutely apeshit. But here, it's perfectly OK. First Amendment? What's that? Prior restraint? Never heard of it.
Best of all, the only one who appears to be abusing things here is the plaintiff. Does Mike criticize the plaintiff's attempt to take away Rightcorp's First Amendment right? Of course not. Abuse is good, as long as it's against people he doesn't like. The double standard is alive and well on Techdirt. Always has been. Always will be.
It's confirmation bias on your part to argue that the state is using the term of art incorrectly because there's some other statute written by probably some other people that you don't like. That makes no sense. I think it's a safe assumption that you have no legal education. Is that true? As far as citing to authority, that's the way law works. People don't just sit around and make it up. Well, smart people don't anyway. As far as theft of intangibles goes, there's many other statutes that refer to it. It's a real thing, though I suspect that you would deny each and everyone of them too. Am I right, Counselor?
Re: You brought this on yourself
Bawk! #TeamShiva
Re: Re: Annotations
Law students learn this on the first day of law school: The statutes are "law," the comments are not. The comments can be persuasive authority, but they can never be primary authority, i.e., "law."
See, for example:Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683, 687 (Tex. App. 2003).Jefferson Cnty. Bd. of Educ. v. Estate of Cowles, 982 S.W.2d 224, 226 (Ky. Ct. App. 1998).
Primary authority, such as statutes, are "law" and are in the public domain. But secondary authority such as comments, annotations, treatises, model codes, law review articles, dictionaries, etc. are not "law" and are not public domain. The fact that courts rely on them as persuasive authority doesn't make them suddenly public domain.
If you go to the State Government of Georgia's website and try to find the law, what does it point you to? That's right... the ANNOTATED copy of the law. https://georgia.gov/popular-topic/learning-about-georgia-law
And they call it "the official code of Georgia." In other words, yes, the state of Georgia calls its own annotated code the "official code of Georgia." So, yes, the annotated code is law.
This is just embarrassing. The official version you linked to is NOT the annotated version. Can you really not tell the difference between them?
Look at Section 1-1-1 in the linked-to version:After that, there's no annotations.
But if you actually look at the annotated version, you'll see annotations including editor's notes, judicial decisions, cross references, and law reviews. This lawsuit is over those annotations--the ones you can't even identify correctly.
Re: Re: Re: Re: Annotations
(untitled comment)
(untitled comment)
All those "shouldn'ts," yet you still can't tell us whether artists and authors shouldnt have copyrights. Funny that.
Re: Re: Re: Re: Re: Re: VCs might not like patent trolls, but they use them
Re: Re: Re: Re: Re: Re:
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Re: Re: Re: Re:
Don't throw Cathy Gellis under the bus. She represented you. You need to take responsibility for everything in the brief. If you "did not expect in anyway that the ruling would turn on" your argument, you shouldn't have wasted the court's time with it. The point of an amicus brief is to help the court decide the legal issues that are actually before it. You're admitting that you argued irrelevant issues. If you were a party to that lawsuit, I imagine the other side would have moved to strike and for sanctions. Your arguments were so frivolous that the court probably would have granted the motions. Congress' ACTUAL view on intermediary liability is that the CDA doesn't apply in copyright cases. You weren't offering Congress' view; you were offering your own, as baseless as it was.
We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
You wanted to make the court aware of other issues that were not before it? How does that possibly help the court?
You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
Seems like you wasted the court's time by making completely frivolous and irrelevant arguments. I'd be ashamed to back that brief. I couldn't rationalize wasting precious judicial resources with arguments that have precisely zero chance of helping the court. But that's just me.
Re: Re:
(untitled comment)
The court loved your CDA Sect. 230 argument. It was central to its opinion. Congrats! You were such a big help to the court. The perfect amicus.
Re: Re: Re: Re: Re: Re:
Care explaining why the 1st would be applicable and not the 5th which actually addresses due process?
Are you saying that Rightscorp's due process rights should have been the issue? Do you mean procedural or substantive due process? I'm not sure what you're even getting at.
Re: Re: Re: Re:
I don't think I rushed to insult. No need for the dramatics. If you'd like me to take a nicer tone, you could start by removing the IP block you have on my home address. I am a financial backer of your site, after all. It's been almost two years now that you subject me to your mechanism for prior approval before posting. If you were the government, it would be a prior restraint. You fault the government for this quite frequently, yet you do the same thing yourself. Of course, it's futile and easily circumvented. You fault others for doing futile and easily circumvented things as well, yet you do it yourself.
I see your point in separating out the petition with what they then do with the info. In fact, I may be convinced that this ruling does make sense now.
I'm still troubled by the fact that the petitioning is clearly to abuse the judicial system, but I can see how that can be dealt with at a later stage.
I'm glad you see it. I think of it as a prior restraint: You can punish someone after they speak or petition the court, but you can't prevent them from speaking or petitioning in the first place. As far as it being abuse, I simply disagree. It's certainly not the tort of abuse of process--that claim is frivolous. Pietz's client will now have to pay for his decision to even bring the claim. See Philly Law Blog: https://phillylawblog.wordpress.com/2015/05/10/bad-things-happen-when-lawyers-stop-representing-clie nts-and-start-representing-causes-john-blaha-ordered-to-pay-rightscorp-attorneys-fees/
It's not using the 512(h) subpoena mechanism for a purpose it was not intended. While two other circuits have interpreted in the way you like (in that it does not apply to conduits), the Ninth Circuit has not. Offering to settle with someone when there is evidence that they wronged you is not extortion. I get that the evidence is not dispositive. That doesn't make it abuse or extortion. You said above that "(f)inancially penalizing those who are guilty of breaking the law is perfectly reasonable." Can you point to a single post of yours where you defended the rightholder's actions in protecting its copyright as "perfectly reasonable"? I don't recall a single time.
Re: Re: Re: Re:
That is quite the stretch, sounds more like due process which would be the fifth.
A constitutional law scholar, I see.
First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Anti-SLAPP: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
btw, why do you wear those blinders?
What blinders would those be?
Re: Re:
They are asking the court for the subpoenas so they can identify the subscribers. That's the purpose of the subpoenas. It's not an ulterior motive. It's a proper motive. Whether they sue the unmasked subscribers, or whether they offer to settle for some amount of money, matters not.
I still don't see how abusing the court system just to identify anonymous individuals for the sake of extorting them is legitimately "petitioning the court" under the First Amendment, but alas, it's clear that the court says I'm wrong. And I'm perfectly willing to admit that the court disagrees with me.
Because everyone has a First Amendment right to petition the court. Requesting a subpoena falls under that protection. Are you seriously suggesting that Rightscorp should not be able to petition the court? I get that you don't like what they're doing, but I find it hilarious that you'd deny them the constitutional right of petition. The fault in your conspiracy theory approach is that you're not separating out asking the court to take action vs. the merits of that request. You have a right to ask the court for something, even if the court ultimately denies the request and sanctions you for being frivolous. This is basic, simple stuff.
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Congratulations, dipshit.
Nice straw man. Who cares about the share price? Not me. I think they're going to continue losing on the DMCA subpoena argument. That's a completely separate issue from whether they have a First Amendment right to seek those subpoenas from the court in the first place. It's amazing to me--simply amazing--how you guys turn off your concerns about constitutional rights just because you don't like somebody. Double standard.
(untitled comment)
In the earlier post, Mike made the unsupported claim: "But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech."
In Mike's view of the First Amendment and the Anti-SLAPP statute, petitioning the court is not protected activity.
In the comments, I said: "Yeah, that's one of the funnier things Mike has ever claimed. Funny how blinded he is by his own double standards. Funny too how he completely ignores the part of the First Amendment (and the anti-SLAPP statute) that refers to the right of petition, and he pretends like the 512(h) thing is settled law when the Ninth Circuit has never addressed it. Reporting! Analysis! Techdirt!"
Now we have the court completely rejecting Mike's position. The point is so obvious, the court spends only three sentences discussing it: "There is no question that the complained of conduct satisfies the first prong of the anti-SLAPP statute. The entire claim is based on Defendants’ representations to various federal courts in order to convince those courts to issue subpoenas. This kind of action is specifically defined as protected action by § 425.16(e)."
Does Mike correct his mistake in ignoring the right to petition secured by the First Amendment and protected by the Anti-SLAPP statute? Of course not. He doubles down: "But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp's free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law."
It wasn't a "huge stretch" at all. There was "no question." People have a First Amendment right to petition the courts for redress. It is an important and fundamental right. But Mike doesn't think copyright owners and agents should have that right. He can't even understand how the First Amendment is implicated at all.
Hilarious!
Just imagine how freaked out Mike would be if, say, the MPAA argued that the EFF couldn't even petition the court. He would go absolutely apeshit. But here, it's perfectly OK. First Amendment? What's that? Prior restraint? Never heard of it.
Best of all, the only one who appears to be abusing things here is the plaintiff. Does Mike criticize the plaintiff's attempt to take away Rightcorp's First Amendment right? Of course not. Abuse is good, as long as it's against people he doesn't like. The double standard is alive and well on Techdirt. Always has been. Always will be.
Kudos, Mike!
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