Saturday, June 21, 2008

Amicus curiae briefs filed in Capitol v. Thomas

In Capitol v. Thomas, a number of groups have accepted Judge Davis's invitation to submit amicus curiae briefs on the issue of whether a manifest error of law was committed when the jury was instructed that Jammie Thomas could be liable for just 'making files available'. The deadline for filing of amicus briefs was Friday, June 20th at noon.

Here's a list of the briefs that were filed:

In favor of the RIAA position:

Amicus brief of Thomas D. Sydnor II of Progress & Freedom Association
Amicus brief of Motion Picture Association of America

In favor of Jammie Thomas's position:

Amicus brief of 10 copyright law professors
Amicus brief of Intellectual Property Institute of William Mitchell College of Law
Amicus curiae brief of Electronic Frontier Foundation, Public Knowledge, US Internet Industry Association, and Computer & Communications Industry Association

Here's a list of the ten copyright law professors:

Notice of appearance of ten copyright law professors

Commentary & discussion:

Ars Technica
Digital Media Wire
Ars Technica
C/Net News
Patry Copyright Blog (MPAA brief)
Patry Copyright Blog (PFF brief)
LiveJournal (Russian)
Heise Online
LA Times
Electronic Frontier Foundation
University of Minnesota Law School

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...

not yet read it, but since its in favour of RIAA:
is "Progress & Freedom Association" one of those Orwelian newspeak thingies?

"Progress" as in "keep going on with old obsolete business models" and "Freedom" as in "we want the freedom to extort money without that a pesky lawsystem and thse fair judging judges disturb us"?

raybeckerman said...

Yes it is. It used to be called the Corporate Economic Servitude Foundation, until it changed its name.


Actually it's a hypocritical right-wing organization that says it's a "market-oriented" think tank which believes in "limited government".

The hypocrisy in its mission statement is palpable. It is obviously just a front for big corporate content owners.

1. It's not "market-oriented". If it were market-oriented, it would want the record companies to be competing in the market place, rather than trying to use (a) the courts, and (b) the back rooms in Congress, as the place to do business. I guess they should delete "market-oriented" from their "mission statement". Or at least put in a footnote: they are 'market-oriented' when their clients are winning in the marketplace, but not when they are losing.

2. They falsely claim to believe in limited government. But yet they approve in bringing 40,000 frivolous lawsuits against noncommercial, mostly innocent, Americans. Last time I looked, the lawsuits were being hosted by the federal government. So I guess they should delete the phrase "limited government" from their mission statement, or at least put in a footnote: they are in favor of limiting government's ability to protect ordinary people's rights, but not in favor of limiting big corporations' ability to use government as an instrument of oppression.

Other than that, and the blood dripping from their fangs, they're great guys.

Anonymous said...

Progress & Freedom Association sponsors include EMI Group, Sony and BMG Music Entertainment, Inc., and Time Warner. What an amazing coincidence.

Anonymous said...

Further to Ray's posting, here is a link to the list of supporters of PFF:

Essentially all entertainment, communications, and broadcast.

My town, Columbus, Ohio, was at the turn of the 20th century the world's capital of buggy manufacturers, 22 in all. Needless to say, they are long gone, along with the Parker Bloser school of practical penmanship that taught secretaries, all male, to write well.

The disappearance was preceeded by many futile attempts to control the Dodge boys and good old Henry F. by legislation. Speed limits, at below the speed of a horse-drawn buggy, requirements that the motorcar be led by a man waving a red flag, etc. They orchestrated their own doom by denying technology.

I think the record industry is not far behind.

Jadeic said...

I see that you are trying now to keep a low profile since striking out on your own ...

Pleased to see that you do not intend to pull any punches.

Sock-it-to-em, sock-it-to-em.


Scott said...


According to their web site, the amusingly named "Progress and Freedom Foundation" is primarily funded by:


    CBS Corporation

    Comcast Corporation


    Cox Communications


    EMI Group

    Entertainment Software Association

    Intel Corporation

    Mel Karmazin Foundation

    National Cable & Telecommunications Association

    NBC Universal

    The News Corporation Limited

    Sony & BMG Music Entertainment, Inc.

    Time Warner

    VeriSign, Inc.

    Verizon Communications

    Viacom Inc.


    The Walt Disney Company

With one obvious exception, this member roster does not fit the label "right-wing organization" by any stretch of the imagination. Although it would probably be more accurate to call it a "liberal fascist organization," since it reflects a unified position of big businesses whose managements have traditionally supported liberal public policy positions, engaging in partisan name calling isn't helpful. And in the greater scheme of things, they're not being hypocritical. In fact, these businesses are being very consistent with the ugly way they have always done things.

They're wrong, but they're consistent. And all of the plaintiffs in this case are members of this association, so they're sandbagging the court by filing the amicus brief.

One other note on the amicus curae briefs: William Mitchell College of Law, in St. Paul, Minnesota, was Chief Justice Warren Burger's alma mater.

Matt Fitzpatrick said...

Wikipedia's article on [[Progress and Freedom Foundation]] sums it up.

I don't like most of this media-conservative (conservative except on free speech) think tank's views, but I do respect that they're honest about who's paying their bills.

John said...

Am I the only one who finds it funny all the cases Progress & Freedom Association cites as justification for 'making available' are cases brought by the RIAA?

Anonymous said...

I'm curious why the PFA is citing international treaties regarding domestic law. IANAL however it would seem to me that domestic law would govern whether international treaties are valid and not the other way around.


StephenH said...

Some of the links are not working. Can you fix this?

raybeckerman said...

Stephen, I checked all the links, they were working fine for me.

raybeckerman said...

I just love these "limited government" guys who think the taxpayers should pay for them to have 40,000 unnecessary lawsuits.

Anonymous said...


They are citing the treaties because that is the only thing they have to cite. It actually does not help them, but you have to try as hard for your client to prove your case.

The plain language of the statute does not permit these actions, because it was written many years ago, and requires the exchange of actual physical objects containing the material. (Copies or Phonorecords), they are simply out of luck.

Since there is NO proof of a physical object changing hands, nor for that matter is there any proof that an electronic copy changed hands to an unauthorized person (Remember, MS is an agent of RIAA, and therefore AUTHORIZED to download), they are out of luck.

The treaty they cite seems to suggest that the national law in each country that has signed it MUST prohibit the conduct that they complain of. However the US Congress has declined to change the law in that regard. Thus, "Making available" is NOT currently against the law, ONLY the action of transfer of "Copies or Phonorecords".

If they dont like the fact the US Congress has declined to enact a provision of a treaty, their only recourse is to the Congress.


Anonymous said...

The MPAA and PFA briefs seem to rely almost entirely on policy arguments, but they don't really seem to make a compelling reply to the argument that they can sue under the reproduction right. That's a pretty compelling tie-breaker. It may be more costly to prove infringement under that theory, but it certainly is possible. In fact, I'd think that it would probably be easier to prove infringement under that theory than under a distribution theory. For instance, if a media file had metadata linked to a warez group, that would serve as an inference that the media was improperly reproduced. On the other hand, if the media file did not contain such metadata, and the person had the CD, it would create an inference in fail of fair use ripping.

The media company's argument seems to be that because they have lots of money, and because copyright is important, they should be able to have access to the courts at less cost than a copyright defendant. I don't think anyone who questions their legal tactics believes that they shouldn't have access to the courts at all, but simply that they should play by the same rules that the rest of us little people play by.

Anonymous said...

I think an important point is that the RIAA could make a circumstantial case that a file in a share folder must have been downloaded. In fact, a judge made that assumption for them once (in a highly improper fashion). The problem is that the RIAA doesn't want to have to make a case, they want their case presumed to be true. They want the possibility that infringement could take place to mean guilty of infringement and liable for millions of dollars in statutory damages.

In the RIAA's world everybody is an illegal infringer and it is just a matter of when they will get around to suing them, regardless of whether the defendants have every copied anything ever

Anonymous said...

Is it just me, or is this "PFF" confusingly similar to the EFF in name?

- C15

Not Telling said...

In the Jammie Thomas case, the Amicus Brief filed by the Progress and Freedom Foundation should be thrown out.

The Progress and Freedom Foundation lists among its members:

Sony & BMG Music Entertainment (which owns Arista Records)
EMI Group (which owns Capitol Records)
NBC Universal (which owns Universal Music Group (which owns Interscope Records))
Time Warner (which owns Warner Bros. Records)

All of whom are Plaintiffs in this case.

Alter_Fritz said...


Commentary & discussion:
Heise online (german)

Anonymous said...

> All of whom are Plaintiffs in this case.

You should also compare their brief to the EFF's. While the EFF has an entire section about their interest as an amici, the PFF puts absolutely nothing.

I guess that "industry sock-puppet" would've sounded a little gauche.

- C15

Anonymous said...

Well, I've been reading a lot of legal stuff lately, not just here but on a case I am actually involved in. And IANAL, but I've been trying to summarize the core arguments to explain them to others I work with.

Anyway, it seems that the arguments here are very simply summarized:

Amici for the defendant: The copyright law clearly states that a distribution requires the bits to move.

Amici for the plaintiff: Copyright law should be interpreted in the context of what the Berne treaty might imply/mean about distribution.

Is that a good summary of the two sides?