Monday, August 04, 2008

Editorial comment on Cartoon Network v. CSC and Capitol v. Thomas

Editorial comment:

It looks to me like we are now past the high water mark of the RIAA/MPAA's attempt to rewrite copyright law. The credibility of their radical arguments is gone, and the tide is ebbing on their reign of terror.

The trend I am seeing is that judges are reading the statute and following the statute, the one exception being Judge Karas's decision in Elektra v. Barker, in which he incorrectly equated "distribution" with "publication", a result he reached by elevating scraps he'd read from the legislative history over the plain wording of the statute itself.

The high water mark of the madness was probably the RIAA/MPAA's success in getting Judge Davis to disregard the jury instruction he had planned to give, and to use their instruction, which disregarded -- indeed contradicted -- the plain words of the US Copyright Act, in Capitol v. Thomas, resulting in an absurd verdict of $222,000 for infringement of 24 99-cent song files.

Yesterday's decision by the US Court of Appeals for the Second Circuit, in Cartoon Network v. CSC Holdings, was most heartening, as all of the content cartel's requests for the Court to disregard the plain meaning of the statute were rejected.

As is today's report from, that Judge Davis has indicated he is likely not to make the same mistake again. I enjoyed this passage, as it showed that the RIAA's argument is that the Court should disregard the statute, and that the Judge is not going to do it this time around:

The judge implied that the Copyright Act appears to demand a transfer of a copyright to be a violation of the act. He said Congress didn't support Verrilli's position that proof of downloading by others from Thomas' share folder was implied and not necessary.

"Why didn't Congress do that?" the judge asked.

(The Copyright Act gives a rights holder the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.")

"There is nothing in that language that the plaintiff must demonstrate a transfer," Verrilli said.
I am glad to see the law being applied in a conservative and rational manner, and I am glad to see the content owners' unprincipled attempts to rewrite the law being rejected.


Commentary & discussion:

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property


Alter_Fritz said...

let me allow a comment too please:

While I don't want to comment about Thomas' case. I want to note an observation regarding the decision of the US Court of Appeals for the Second Circuit.

While I was reading those judges well written introduction into the case that made it possible for me to understand what the whole case was all about even without having heard anything about the prior proceedings so far, I first thought: "that is a clear shot, it is Sony but only in a "the involved technology representing the current state of evolution" like way".

So I wondered for what they needed so many pages ;-)

But it was really fascinating to read their argument about all the tiny steps that are involved because the technology has shifted from clumsy big mechanical stuff to some tiny electronic circuits and not much physical work involved pushes of buttons to do what was 20 years ago real physical work to create a personal copy for timeshifting purposes.
Really fascinating how those -I assume non specific technological geeky- highcourt judges dissected every little step involved regarding its likely legal implication.

But what I find the most noteworthy thing in their decision is that they spotted and clearly called the original Plaintiffs out for their attempt to "rewrite" the laws that congress enacted.
P35L3 "Thus, according to plaintiffs, when Congress says that to perform a work publicly means to transmit. . . a performance. . .to the public, they really meant “transmit . . . the ‘original performance’ . . . to the public.”
It's good to see that this highcourt judges caught that blatant attempt by the rightsowners to rewrite laws like they see fit.

A behaviour we also seems to see more and more in cases where organised music are the Plaintiffs.

I just hope for the defendants in those cases that are right now ongoing, that the district level judges also will show the same level of oversight as the high court judges have shown here in this case of organised Film versus The technical evolution of the VCRsystem.

Thanks your honors WALKER, SACK, and LIVINGSTON, it was a real pleasure to read such a well reasoned and explained decision. That it was also a decision for the betterment of technological evolution gives it just an extra bit of "good feel".


Macros said...

I'd be interested to know that if the RIAA's scheme for extracting money from innocent people is shown to be invalid, would the people who have paid the few thousands each so far be able to reclaim their money?

Or does the belief that their claim is valid make the RIAA invulnerable to the backlash?

Scott said...

Macros: I've asked that before too. If courts determine that the amount the record labels can recover is far less than they have been extorting from people through the "settlement support center," does that mean that people can sue the RIAA and the labels to recover their overpayment, plus damages for fraud? What legally would forstall this?

I hope it is possible. If it was certified for class action, it would ultimately drive the Big 4 into well-deserved bankruptcy.

Anonymous said...

"There is nothing in that language that the plaintiff must demonstrate a transfer," Verrilli said.

What is this guy smoking??? As a non-lawyer even I understand that a DOCUMENTED transfer must take place in order for a crime to have been committed. I can't even think of a ridiculous enough analogy to compare with this statement! The only thing I can hope and pray for is that these moronic, pathetic, lying lawyers get fined, fired and permanently disbarred for all of the crap they have flooded the Court system with over the past couple of years.

If this Verrilli guy is supposed to be their Big Gun that comes riding in at the last minute to save the RIAA's sorry butt, then I'm actually feeling sorry for them (no, not really).

Man, whatever school gave this guy a law degree is probably regretting after reading about this.

Now that this "free ride" for RIAA has been going on for years and judges/lay people are catching up to their tactics, it's only a matter of time (hopefully not that long) until these buffoons get whats coming to them from the Courts.

After all of your hard work Ray in bringing the shady workings of these imbeciles to light, I have even entertained the thought of changing careers to law.

-Anonymous in the South