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ZippyDSMlee's picture
Joined: 2006-09-30


In polite but unmistakeable language, the Departments of Justice and Commerce yesterday told Congress that the new Enforcement of Intellectual Property Rights Act of 2008 (EIPRA) was a monstrosity so horrifying that only a stake through the heart of several key provisions could make it palatable. This is the bill, remember, that would give Justice the power to bring civil (not just criminal) lawsuits on behalf of groups like the RIAA, seek "restitution" damages, and then turn the money over to the private groups.

In other words, the DoJ could become a pro bono lawyer for the RIAA, freeing the trade group from all that bad PR and the millions of dollars it has spent filing tens of thousand of lawsuits in the last few years. Plus, the RIAA would still get all the money. Shockingly, the DoJ didn't think this a really good use of taxpayer-funded resources.

The letter (PDF) was sent to the Senate Judiciary Committee, which approved EIPRA several weeks ago. It starts out nicely enough, saying that both the Justice and Commerce departments "truly appreciate the bill's intention to enhance the tools available for protecting intellectual property rights." And then the gloves come off.

"Civil copyright has always been the responsibility and prerogative of private copyright holders," says the letter, "and US law already provides them with effective legal tools to protect their rights."

EIPRA could essentially nationalize this function, turning the government into "pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry."

Because the department has "limited resources," such a shift in priorities would only occur "at the expense of criminal actions, which only the Department of Justice may bring." Then the authors hint obliquely at the current financial crisis and the existing US debt, saying that "in an era of fiscal responsibility, the resources of the Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions."

Public Knowledge, one of the DC groups that has been calling for (and managed to secure) some changes to the bill, was pleased by the letter, with President Gigi Sohn saying, "Let's hope Senators get the message."

The Computer & Communications Industry Association, funded by many of Silicon Valley's leading lights, also supported the letter.

"At a time when U.S. taxpayers are on hook to rescue the financial industry, why should they also foot the bill for the content industry’s financial fees?" said CCIA President Ed Black. "We appreciate Justice and Commerce alerting Congress to this flaw and support the administration’s efforts to fix this bill. This contest protection legislation isn't ready for prime time."
I just love it when they make something thats already illegal more illegal...why not enforce the laws we have..oh thats right consumers have to many rights left...

Jammie Thomas is off the hook—at least for the time being. Judge Michael J. Davis has overturned a federal jury's copyright infringement verdict and award of $222,000 in damages to the RIAA. The verdict was handed down last October after a three-day trial and a few hours of deliberations.

Judge Davis determined that he gave the jury an erroneous instruction on the question of whether making a file available for download over a P2P network violated the record labels' distribution right under the Copyright Act. The original jury instructions said that it wasn't, but, after a hearing outside of the presence of the jury, Judge Davis amended the instruction to follow the RIAA's theory that making a file available equals infringement.

After becoming aware of some case law in the Eighth Circuit, Judge Davis invited both parties to submit briefs on the matter, and held oral arguments in August at which he indicated he was leaning towards overturning the verdict and ordering a new trial.

In a 43-page decision (PDF) released late Thursday, Judge Davis wrote that the jury instruction in question was inaccurate. At issue was what he described as the "plain meaning" of distribution. "The Court's examination of the use of the term 'distribution' in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term 'distribution' does not includ[e] making available and, instead, requires actual dissemination," reads Judge Davis' opinion.

The ruling also deals with the right of publication under the Copyright Act. In another P2P case where the judge ruled on the same issue, he decided that making a file available violates the copyright holder's right of publication and therefore infringed the record labels' copyrights. Judge Davis disagreed with that reasoning. "A review of the Copyright Act as a whole also supports the conclusion that publication and distribution remain distinct concepts," wrote the judge. "While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution."

Another issue raised by Thomas in her appeal was the question of excessive damages. Because a new trial is in the works due to flawed jury instructions, Judge Davis did not rule on the damages issue. He did, however, have some strong words for Congress. The Copyright Act is in need of fixing, he argues, because the punishment doesn't fit the crime. P2P users are subject of fines of up to $30,000 per act of infringement, despite the fact that their copyright infringement wasn't for commercial gain. It's worth quoting at length:

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit... Thomas's conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas's actions, but it would be a farce to say that a single mother's acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.

While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred [emphasis his] times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs.

A handful of P2P defendants have argued that the damages sought by the RIAA are unconstitutionally excessive. So far, there has yet to be a definitive ruling on the issue, and some of the cases in which the issue has been raised have been dismissed by the RIAA or settled. But it's clear that some judges are uncomfortable with the prospect of defendants being forced to pay five- and six-figure judgments for sharing files on a P2P network.

In a statement given to Ars, RIAA spokesman Jonathan Lamy said the ruling wasn't unexpected. "We have confidence in our case and the facts assembled against the defendant," said Lamy. "As with all our illegal downloading cases, we have evidence of actual distribution—an assertion this court and others nationwide have made clear constitutes infringement."

With Thursday's ruling, the stage is set for a repeat of last year's trial, but this time with a different set of jury instructions. The judge did toss the RIAA a significant bone, ruling that the MediaSentry downloads could be used as evidence of copyright infringement in another trial—despite the fact that they were made by the rightsholders' authorized agent. There's also significant evidence tying Thomas to the KaZaA account at the heart of the case. Still, the ruling was another crushing blow to the RIAA's pet legal theory that simply making a file available over KaZaA, LimeWire, or anywhere is enough to prove copyright infringement. A new trial could result in a repeat of last year's verdict—although the inevitable appeal might allow a judge to rule on the question of excessive damages—but for now, the slate is clean, and the victory the RIAA trumpeted last fall is no more.
There needs to be hard limits on what they can fine if they aware forced to charge per item/download what amazon/itunes they would stop alot of this ridiculous suing teens and mothers BS.
Killing net radio bitby bit.

oh lord how moronic will it be to CP a link and hen say you can't show a link without consent.......


Ah modern gaming its like modern film only the watering down of fiction and characters is replaced with shallow and watered down mechanics, gimmicks and shiny-er "people".
Incoherence is my friend and grammar my bane, which is the fulcrum of suffering I place upon others!:ZippyDSMlee

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