Wednesday, May 27, 2009

RIAA better watch out: Judge Sotomayor knows about internet, computers, and copyright law

Commentary:

According to this report in Gizmodo, Judge Sotomayor is a "nerd" and is very knowledgeable about computers, the internet, and copyright law.

For obvious reasons, that is not the kind of judge the RIAA lawyers like to find on the bench.



Keywords: lawyer 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 portable music player

9 comments:

Anonymous said...

Interestingly, one of the cases that Gizmodo mentions - the freelance journalist case - Sotomayor was reversed on appeal, and SCOTUS upheld the reversal 7-2.

Anonymous said...

And she crusaded successfully against counterfeiters in her early career...

http://abajournal.com/news/fendi_crush_was_highlight_of_sotomayors_ip_practice

Hard to predict - but odds are at this point that she may be a maximalist and NOT a Lessig loving liberal on the IP front.

We gotta look at her long record of judgments....

Ray Beckerman said...

Every copyright lawyer, including myself, is pro-copyright.

Until the RIAA brought this crazy campaign, there was no such thing as a 'defendant's' copyright lawyer.

The important thing is that the judges (a) know the law so that the RIAA's disingenuous attempts to expand the law through litigation be shut down, and (b) understand technology sufficiently to see through the technobabble the RIAA has been using to convince judges who do not understand technology that a sow's ear is a silk purse.

Anonymous said...

Ray -

I wholeheartedly agree with you. Judges knowing the law and the technology in these RIAA cases would be a Good Thing.

But I believe even more firmly that judges bear the tremendous burden of reading the Constitution and its amendments and the laws of the United States, and applying (or interpreting) them as written. And that cuts across all cases, not just RIAA cases. Because (obviously to me, and I'm a layman) if they do that, then these RIAA cases would go away in a heartbeat.

Before worrying about any specific area of law, I submit for your consideration the idea that it would be prudent to ask: Would Ms. Sotomayor read and apply (or interpret) the Constitution and laws of the land as they are written and intended to mean and not resort to personal social/political views or agendas in foromulating opinions?

-Quiet Lurker

Ray Beckerman said...

Dear anonymous quiet lurker

I disagree. I'm sure they'll ask all kinds of questions like that but it's ridiculous. She has been a federal judge for 17 years. As a district judge I think she was rarely reversed, and as an appeals judge (a) likewise and (b) she was always acting as one of several panel members.

I think it's ridiculous to ask someone like that whether she will apply the law.

Puh---leeeese.

And if you have some kind of hidden agenda in your question, please be aboveboard and disclose it, as I have always been with you.

Anonymous said...

Quiet Lurker:

Since long ago, the most common vacuous complaint against judges is to claim they "make up the law according to personal views". So, your concern on its own is just FUD. If you have specific details of specific rulings in mind, that's a different matter.

XYZZY

Anonymous said...

Xyzzy -

I'm trying to draw a continuum between "to the best of my ability, I will not allow anything but the law and the case before me to influence how I apply the law' on one end and 'to the best of my ability, I will not allow anything but my personal beliefs to influence how I apply the law' on the other.

In my book, a good judge falls on the former side of that continuum, while a bad judge falls on the latter side.

The crucial question for any candidate for any position on any judicial bench then becomes 'will you be a good judge.'

And we all know how I define a good judge

-Quiet Lurker

Russell said...

It may not make a difference. For the 30000 cases, only a handful of reached trial which is only the first step in getting to the SC. Although we would believe that the RIAA is bending the law and court procedures into a pretzel, it will take years for the SC to rule on it if they ever get a case to rule on.

And the SC has been noted as being incrementalist rather than making broad judegements. You can never tell but this battle is still a long way from her

Ray Beckerman said...

Don't be so sure, Russell.

1. There are 2 major appeals in the 2nd Circuit, one of which is fully briefed & would have been argued already had not Timothy Reynolds whined his way into an adjournment because he allegedly had a trial on May 18th. (5 will get you 10 he never had that trial).

2. The 1st Circuit determination banning webcast is ripe for a cert. petition if Prof. Nesson is so inclined.

3. The Capitol v. Thomas case is heading for trial, and the RIAA (stupidly in my view) is spoiling for an opportunity to get the case to the 8th Circuit, where they think they will have a better chance of snookering the judges into buying their 'making available' argument.

4. Lastly, you just never know. These cases have often yielded surprises. The first case to give us an actual decision on 'making available' wasn't the Elektra v. Barker decision which everyone was waiting for for 2 years, it was the unknown, uncontested, Atlantic Records v. Brennan case. So which case will be the first to go to the Sup. Ct. is anyone's guess; it may well be one we've never heard of.