Wednesday, September 22, 2010

Supreme Court asks RIAA to respond to petition for certiorari in Maverick v Harper

In Maverick Recording Co v. Harper, the US Supreme Court has asked the RIAA to submit a response to the petition for certiorari, according to this report in p2pnet.

The RIAA had initially waived its right to respond.

This is the case in which the 5th Circuit had held that the innocent infringement defense is barred as a matter of law, even if the infringed copy bears no copyright notice, any time the recording in question has corresponding copies on sale in record stores which do bear a copyright notice.

[Ed. note. The 5th Circuit's ruling was ludicrous, and deserves to be unceremoniously reversed. The Supreme Court's request for a response from the RIAA at this juncture suggests that the high court has picked up on the 5th Circuit's flagrant mistake. -R.B.]

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

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raybeckerman said...

An anonymous comment was rejected for failing to include a "handle"

It was a comment which disagreed with my characterization of the 5th Circuit's ruling as "ludicrous" but offered no reason for the disagreement.

I stand by my opinion, which is that it was ludicrous.

The law does not require us to investigate all record stores in the world to find out whether a particular piece of music is or is not copyrighted.

Anonymous said...

Would it not have been appropriate to quote what was rejected, and then make your response? What does failure to include a "handle" have to do with anything.

For the record, what I stated was my opinion that calling the court's opinion ludicrous was inappropriate. The court was faced with a statutory provision as to which two interpretations were possible. The court chose the one it believed was most consistent with the statutory scheme.

If you disagree then you should say so and proffer why you believe it should have been decided otherwise. I rather doubt that had you presented your interpretation at oral argument the judges would have from the bench called it ludicrous. It seems to me that reciprocity would be the most effective and prudent course of action.

At a more substantive level, however, we both know this case is not about "innocent infringement". That is nothing more than a means to an end, with the end being yet another attempt by counsel to interject into yet another case a challege against statutory damages.

raybeckerman said...

1. Again, no handle.

2. Again, no substantiation for your opinion.

I allowed your comment to be published so that my less cowardly readers could see what I'm dealing with.

Me said...

"That is nothing more than a means to an end, with the end being yet another attempt by counsel to interject into yet another case a challege against statutory damages"

Well, if the statutory damages weren't so grossly out of line then we wouldn't be in this mess, now would we?


raybeckerman said...

As everyone knows, I have been on record a number of times as to why I consider the 5th Circuit and 7th Circuit decisions on this issue to be "ludicrous".

There are many reasons, including (a) the fact that it is inconsistent with the plain meaning of the statute, (b) its interpretation renders the whole "innocent infringement" defense meaningless, and (c) it is irrational in the extreme.

I have been writing on this subject, on this blog, since 2005.

For someone to come here, to this blog, and tell me that I need to repeat my reasoning yet again, is "ludicrous", especially where the troll making the comment has offered not a single shred of reasoning or authority to support the holdings.

As I read the petition for certiorari, it was only about the innocent infringement defense, so to say it's about something else is... well... ludicrous.

Anonymous said...

Anonymous - No Handle.

Hmmmmmm. I smell an **aa troll.

They do love to hide as they spout the "ludicrous" **aa talking points. :)


Anonymous said...

Your site contains three "windows" or "boxes" below the comment window.

The first is shown on my webpage as a window entitled "web verification", but on my compuuter it has an "x" in the upper, left corner.

The second is for "word verification". It is initially blank on my computer.

The third is choose an identity. I happen to select "Anonymous".

After I type a comment nothing happens re posting until I select an identity. Sometimes a word appears in the word verification box when I select an identity. Sometimes it does not (usually the latter).

MLS said...

Mr. Beckerman,

My initial comment, a handle for which was not assigned for reasons that elude me, was not to enagage in a debate concerning "innocent infringement" per se.

It was merely to note that the court had before it two possible interpretations, and based upon its reading of both 402 and 502 concluded that the interpretation pressed by the plaintiff was more consistent in its view with the law than the interpretation pressed by the defendant.

Obviously reasonable minds can disagree as to which of the two interpretations is correct. However, to characterize anyone (including two appellate courts) holding a view contrary to that which you advocate holding a "ludicrous" view seems little more than saying "I am right. You are wrong. End of discussion."

Importantly, I do not dismiss the position pressed by the defedant in its petition to the Supreme Court. The same applies with equal force to the amicus brief.

My sole point is that a phrase such as "strongly disagree" is much more likely to promote an open discussion than the use of a pejorative term such as "ludicrous". The former invites discourse. The latter does not.

raybeckerman said...

Dear MLS Anonymous:

The holding of the 5th Circuit is
(a) irrational (b) contrary to the plain meaning of the statute (c) contrary to judicial precedent and (d) unjust.

Other than that it's hunky dory.

Anonymous said...

For what it's worth, Ray, I stand with you on this one, but perhaps for different reason.

If I go driving in my Ford compact, and do something to get into a wreck with it, should Ford be held blameless if my neighbor's Kenworth tractor-trailer rig has a warning against whatever I did? After all, Kenworth trucks are all over the place, and I should have seen the warning in my neighbors truck...

I know, apples and oranges. But, I'm working from the same "logic" as the *AA are working from in this innocent infringement matter.

--Quiet Lurker

raybeckerman said...

Received this comment by email [point well taken]

a) Started to leave a comment on your blog, but for some reason, I was unable to load the "Word Verification" image.

b) It looks like you went several rounds with Anonymous re "Ludicrous". I think you would have gotten more mileage out of providing a link following ...

"As everyone knows, I have been on record a number of times as to why I consider the 5th Circuit and 7th Circuit decisions on this issue to be "ludicrous"."

There are an infinite number of keyboard monkeys out there, some of whom will genuinely stumble upon you for the first time. Merely saying "I have been on record a number of times" forces the research to find said records upon the reader, who may decline in favor of "well, how about you say it one more time, then". The link might well forestall that.

But then, I come from a background of wikis, where providing context links is second nature.

Mel K

Mel, you're right. But the thing is..... I don't have enough time to provide documentation to every troll who the RIAA decides to launch at me.

Besides, this blog has always been geared to informed and intellectually honest readers.

Commentators elsewhere have noted that the best thing about this blog is the comments by our regular readers, many of whom often teach me something.

There are plenty of places on the internet where ill informed, or deceptive shilling, commenters can have their say; this isn't one of them.

In my continuing post "How the RIAA litigation process works", I began slamming the Gonzalez court's ludicrous ruling in 2005. No RIAA troll has ever been able to come up with any argument to defend it.

MLS said...

...But the thing is..... I don't have enough time to provide documentation to every troll who the RIAA decides to launch at me.

Besides, this blog has always been geared to informed and intellectually honest readers.

There are plenty of places on the internet where ill informed, or deceptive shilling, commenters can have their say; this isn't one of them.

If I read your comment correctly, I am:

An RIAA-associated troll.

Uninformed and intellectually dishonest.

Ill-informed (which I guess is better than uninformed) and engage in deceptive shilling.

Based upon your above comments I now better understand why you have chosen to refer to the circuit court's opinion as ludicrous.

raybeckerman said...

Dear Anonymous:

You did not read my comment correctly.

1. I do not know if you are RIAA-associated. As to whether you're a troll or not, you are clearly a "troll", as you attacked my opinion, and continue to do so, but without providing any basis for refuting it. At the least you are a "time waster".

2. You are clearly uninformed, because had you been well informed you would know that (a) I am a signatory of the amicus brief in Whitney v. Harper, which explains why I believe the 5th Circuit's decision is grossly erroneous, and (b) I have been criticizing the Gonzalez decision -- on this very blog -- for 5 years. I personally consider it 'intellectually dishonest' to disagree with someone who has publicly written on subject for 5 years without substantiating the reasons for your disagreement.

MLS said...

Mr. Beckerman,

The Plaintiff in Maverick v. Harper certainly laid out its analysis of law before the 5th Circuit (disclaimer: I have not read it, but would be pleased to do so if provided a site for the brief).

The Plaintiff, in response to the Supreme Court's invitation, will likely brief the issue once more.

I must, of course, acknowledge that this is an area of law in which you have devoted a large amount of time and effort honing your arguments.

While my time and effort is certainly much less than yours, it does bear mentioning that I have practiced copyright law (though not in the context of the issues you regularly deal with) for just over 31 years. I am certainly no stranger to Title 17, and in certain areas thereof I have devoted time and effort likely equal in extent to that which you have devoted to these issues. My practice, as likely yours, has involved issues under the 1909 Act, the 1976 Act, state copyright law, and international copyright law.

It is not my intent to suggest that my qualifications are generally similar to yours, but only to point out that in this area I am hardly a novice who is looking at these issues solely as a matter of first impression.

Like you, I am not admitted to the Bar of the 5th Circuit. However, given the ubiquitous nature of the internet and the likely reliance on it by the clerks in the 5th Circuit's employ, I would be very circumspect in making comments of the type that I believe could come back to haunt me should I ever have to go before the court and present arguments, either in briefs or at an oral hearing, a circumspection that I believe is warranted should a case proceed to the Supreme Court.

It is with this in mind that I originally opined that perhaps terms such as "ludicrous" should be avoided in favor of less pejorative terms.

As a side note, having read Plaintiff's cert. petition the only issue I was able to discern that is on appeal is the plaintiff's ability to interpose an innocent infringer defense. It is not directed to the issue dealing with the constitutionality of statutory damages as applied in cases such as Maverick v. Harper. In my view the case is in very poor condition at this juncture to address this higher profile issue. Even if your arguments carry the day, it seems to me that the best that would happen is for the case to be eventually returned to the district court so that the Plaintiff can present an innocent infringer defense.

If you have another view I would be pleased to learn your view and reasons therefor.

raybeckerman said...

Dear Anonymous MLS

The sole issue in the case at this point is the innocent infringement defense.

The 5th Circuit's ruling - that the innocent infringement defense is precluded based on the fact that somewhere in some hypothetical record store a hypothetical copy of the work exists which bears a copyright notice which the defendant might have seen had she walked into that record store at the appropriate moment, looked in the appropriate spot, and detected the album bearing the recording of the single - is, shall we say, 'highly erroneous'. Perhaps you prefer that wording.

MLS said...

Mr. Beckerman,

Anent your suggestion "highly erroneous" my reaction is:


I hope I am right in assuming that by not mentioning "statutory damages" you agree that this is the "500 lb. Gorilla" lurking in the background.

raybeckerman said...

I do not see that the constitutionality of the statutory damages scheme is at issue in this case. All that is at issue is the district court's correct interpretation, and the 5th Circuit's "highly erroneous" interpretation, of a statute.