TRIAL DAY 2
(… just some of the highlights from today. this post does not purport to be all-inclusive or of the highest unbiased journalistic quality.)
As the jurors entered the room to kick off the second day of trial just a few minutes after 9am this morning, one knocked something over in the process of sitting down. Judge Gertner was quick to begin the day with “it is okay to destroy federal property.”
Gertner’s reassuring sarcasm underscores the serious but quirky atmosphere in the tenenbaum trial courtroom. Gertner began the day with instructions to the jury. The burden of proof, placed on the plaintiffs, is cased on the preponderance of the evidence, also known as balance of probabilities, which is the standard required in most civil cases. Gertner explained that the copyright holders must prove
- that they are the owners of the protected works; and
- that the defendant infringed (here, meaning that he reproduced or distributed the works).
Intent is irrelevant for the copyright infringement, but is significant with respect to damages awarded.
Opening Statements
(full write-up)
The record companies’ opening statement began by saying that these companies are made up of “real people” whose livelihoods are threatened by individuals like Joel, and that Joel *knew* that what he was doing was wrong. The opening attorney referenced artist Bruce Springsteen, an artist that one juror specifically mentioned as his favorite yesterday during voir dire.
Nesson’s opening statement was, well, nesson-eque. His tone was similiar to the tone he takes while teaching classes — engaging in an educational experience not lectured to an audience, but rather uncovered and discovered between teacher and student. “This story, and yes, it is a story, begins in 1999,” he started. The “exploding styrofoam,” objected to by the plaintiffs, was used to demonstrate to ideas: 1) the notion of unbundling of songs from albums; and 2) the change from physical atoms in the world to bits on the internet. Nesson also used the necker cube as a metaphor for truth. Just as you can see the cube in at least two different ways, he said, so too can truth be viewed from multiple points of view. He then encouraged the jurors to remember to see this case from all points of view, including Joel’s.
“If you’re selling water in the desert and it begins to rain,” said Nesson, “you need a new business.”
Wade Leak, General Counsel for Sony BMG Music
(full write up)
- Have you heard of *Nsync? “Justin Timberlake wouldn’t be who he is today without us.”
- “We don’t make money on these cases because the expenses are too huge.” — so why do them? “We initiated this litigation campaign to educate the public that P2P file-sharing is wrong.”
- “Joel is a flagrant infringer of copyright.”
- “We are not initiating new cases, but we have reserved the right to initiate new cases at anytime.” — so why bother with the older cases? “We are pursing our rights.”
Chris Connolly — MediaSentry
(FAQ: why can’t we have the mediasentry evidence thrown out like they did in Michigan? answer: we tried. it was denied.)
- Explained how KaZaA works
- On cross-examination: “Do you have proof that anyone other than mediasentry ever downloaded a file from Joel?” Response: “No.”
Mark Matteo — Cox Communications
- On cross-examination: “Are you sure the letter to J. Tenenbaum was intended for Joel?” Response: “Yes.” Nesson: “Well, let me introduce you to Joel’s mom, Judie Tenenbaum.”
It’s a shame that Joel and his Harvard team have not seen the writing on the wall. Their case is a dead-bang loser. It was gutted by Ms. Rust’s motion for summary judgment on fair use the other day and now they are doing a trial basically on damages. This case has no chance of changing copyright law or any case law associated with it (SCOTUS will never hear this case with a clear admission of liability). They are wasting their time and this numbskull from Harvard should have seen this coming.
They’re not trying to change copyright law, Ashby. They’ve said that they respect the law, and they’re merely trying to achieve a sensible fine, if anything at all.
Just because something is deemed against a law does not, in fact, make it right. For instance, it is illegal to mispronounce Arkansas in the state of Arkansas. While it seemed like a good idea at the time of writing, and I am sure many have been prosecuted on that law, it does not make it correct. A more prominent example would be the case of Prohibition in the United States, whereby alcohol was made illegal for consumption. Again, a great many people were prosecuted under the law, and many more people were duped into believing that if it’s a law then they have no choice but to adhere to it.
It was only through mass civil disobedience that such a law was repealed.
The original intention of Copyright Law is to grant the holder of works (owner) a limited time frame by which to expect exclusivity and profit. Originally, this time frame was proposed as an ample fourteen years, after which such works were relegated to public domain in the interest of furthering innovation and competition.
It was concluded that to grant a holder of works an exclusivity into perpetuity would do more harm than good for future innovation and competition, virtually stunting said growth and expansion, and severely damaging the economy as time progressed as it became exponentially harder to create new works, thus removing the incentive to produce “new” works.
Within the United States, copyrights are common for 75 years after the death of the creator, with intermediary holders carrying exclusivity far into the future through the act of re-releases in many formats. The very idea of a “back catalogue” which spans nearly one hundred years is preposterous in light of the scope and intention of copyright as it was originally conceived.
Again, copyright is meant to foster a limited time frame by which the creator of said works may expect exclusivity and profit from their works. It is the threat of public domain which spurs said creator to continue their works in order to continue their revenue. Unfortunately, Copyright has been warped and twisted through lobbying factors in order to benefit both the creator but moreso themselves (being representing entities such as RIAA), in that the original scope and intention of Copyright no longer holds the value it was originally conceived to enforce. If copyright has the intention of limiting the exclusivity of the creator to a limited time frame by which they were granted sole distributorship, then what value does this have in an era whereby the death of a creator does not pass said works into public domain, and whereby such works are held in exclusivity by third parties for lengths of time which can feasibly be an entire generation?
I take into account the written works of George Orwell, specifically Nineteen Eighty-Four. This book was written in the year 1949, while the author passed away years later. The book, despite the death of the creator, is still held under copyright and will remain so under United States law until the year 2044, whereby such works will pass into public domain.
My date of birth is 1979, and as such, this work was created thirty years prior to my birth. For a written work that was created thirty years prior to my birth, I will not see such in public domain until I have reached the ripe old age of 65, or in a different light - this written work will have survived nearly the span of two lifetimes under current copyright. As originally intended, a span of fourteen years, this work will benefit from a span of exclusivity which is measured as nearly 600% longer than originally intended.
This is a far cry from the scope and intent of copyright law as it was put forth and conceived. If a work can be held in exclusivity for a span of time which makes the intention of the law which governs it negligible at best, then the law which governs it has been rendered without jurisdiction or justification and must be repealed in its current form.
The purpose of a law is to serve and protect the interest of a society as a whole, and not a select group of individuals. Within a democracy it is the will of the society which is to govern said laws which are created on behalf of the society, and to implement laws which directly contradict the will of the society which it governs has no place in any country which rules “For the people, by the people”.
For direct and incontrovertible proof that such laws are in direct contradiction to the will of the societies which they are established to govern, we need only look at the litigation firestorm that is the RIAA around the world, and to the population of this planet who continue to openly defy such laws on an escalating basis.
This is a worldwide civil disobedience against laws which have been abused and shaped in the benefit of the few while literally eroding the rights of the many.
No amount of propaganda or litigation will stop this civil disobedience, and it will only continue to get worse until such time as these laws are brought under control and returned to the state by which they were intended; Serving not only the creators of works, but doing so in the overall best interest of the societies by which they participate.
I could rant about my hatred for these companies, their mismanagement of their artists and dis respectful ignorance of many new artists, but I don’t need to. These eegits are doing it themseves a huge disservice by bluntly making examples. If it starts to rain in the desert… don’t worry Joel, Neeson handles himself like a genius… Not that luck has anything to do with it, but a lucky man need only be born! All the best, and here, they better not try that oul prohibition again, that’s bad craic that is…
Midnite in Belfast, Ireland
If they cannot prove that Joel had songs uploaded from him how can they sue him? Is it because he made the songs available in his shared folder? What is the crime, downloading them or having them available to upload? I think that this case will be a landmark, no matter what the outcome. The music industry needs a serious rethink on song distribution. There will always be peer to peer apps, unless they are outlawed, and even then there will still be people that find ways around it.
Also if Sony has had to dismiss staff because of the “loss of sales” why did they not cut down on the wages of the execs and some of their entertainment budgets (which I’m guessing they must have, and which will be quite ludicrous) and use that to keep their staff on. They just want more money all the time, it’s sickening, what do these artists get? 2 to 3% if they lucky…
Anyways keep up the good work, you have the support from the uk.
P.S
Is there any metadata attached to this post? Will I get sued for voicing my opinion?!!!
Here’s what I would like to ask RIAA:
1) if you’ve chosen to use KaZaa program to listen music, what are the steps to get permission to listen songs owned by RIAA via KaZaa? Is it even possible to receive permission to use their content? (if you find a file from kazaa, how to get permission to use it?) Is there some monthly payment system available for which you can subscribe? How do they handle providing licenses for the content if the content is received by the user via unauthorized channels?
2) If it’s not possible to receive such permission, are they claiming that every KaZaa user that touches those files are in violation of their exclusive rights?
3) If every KaZaa user is in violation, are they going to sue all those millions of people who use it?
If you had only admitted somewhere that what you had done was wrong, I might have some sympathy with you. Artists will only make music if they can make some monet from doing so. If you want to steal their property and pass it on to others without any recompense, you must expect to pay a price for this. It seems that the level of the price is what you are arguing about. But how about an acknowledgfement in writing that what you did in the first place was theft and therefore wrong.
Neil - England
Neil…
“Artists will only make music if they can make some monet from doing so.”
Wouldn’t be ace if all the seminal artists of the last century whose music has touched and inspired millions of people said “It was a bit of a thankless chore composing that music until I got paid”? It’d be mint.
For all those bringing “those greedy record labels” to the table, you’re coming with dirty hands. Stealing isn’t excused when you say “I stole from a jerk.”
Iron C: Of course they’re not going to say that, but without compensation, people aren’t going to be able to afford to spend their lives honing their skills or the time to create outstanding works. The facts are that the best works and the most popular works are created by professionals, people who don’t have to have a day job. When you take without paying, you remove some of their potential.
In the full writeup it clearly states that the files shared by Joel were not created/ripped by him, but by somebody called ‘havok’. So Joel got them from somebody else and didn’t pay for it. To me that’s not stealing, because the other person allowed Joel to make a copy, without asking for a fee. So copying, sure, but not stealing.
(By the way I’m not saying that it’s right to copy songs, just that I don’t agree it can be classified as stealing.)
Or, as so often is the case, their potential is negated when they produce music for money. Although I’m not arguing that case. That would be absurd.
I can’t say I want Joel to get away totally free, because taking something without paying the people who put in the time and money to get that thing out there is wrong. But then again, I don’t like to see some jerky record label win either, which is I guess why the majority of the support here is unfettered… nobody likes a jerk winning, even if they’re right.
The harshest thing about the case is how Joel was selected (whether by random or by profiling… I don’t know) while others commiting the same crime weren’t.
One law that applies to whoever they can be bothered chasing down.
the more i read of this the more it becomes clear that they are trying to make an example of you, but in the end, you can’t pay what you don’t have, and even if they force bankruptcy on you, they can’t take items essential to everyday life, so really, they have nothing to gain from this other than trying to scare other people into conforming.
i say mass civil disobedience is the way to go. i reckon about 99% of internet users are behind you here joel, so good luck man. you stand your ground.
i’ve said it before and i’ll keep saying it,
they can’t sue us all.
and i just had a thought after reading the comments above me, if you weren’t making a profit, merely sharing the music with others, where will it all end?
if i play a CD i buy at a party will that put me in copyright infringement?
it’s just crazy
shiny, in deepest, darkest, er…..belfast
Mr. Gary Wade Leak makes point in his argument against file sharing, and how it affects the music/recording industry at large. Unfortunately this is a case of “calling the kettle black”. In the event of corporate infringement in cases such as mine, the corporation indemnifies itself simply by saying “you proove the ownership of your Intellectual Property over international lines. Unfortunately the World does not recognize the Library of Congress in Washington D.C. as the end all be all of Intellectual Property registry and proof of ownership. In the case of Alexander Graham Bell and Antonio Marouchi, the very fact that we as neighbours cannot agree on the ownership of the IP regarding the Telephone, suggests that every invention, song, poem, etc….. is subject to the same confusion. Joining with the United States of America as many of our Canadian top selling artists have done, sprays further emphasis on the fact that artisans are forced to identify themselves with a corporate bully with a bigger gun. The World Intellectual Property Organization is unable to Police Intellectual Property theft. Our affiliate CIPO or the Canadian Intellectual Propery Organization, charges fees to register Intellectual Property with the Government, giving a false sense of protection. My communications with CIPO officer Andre Tremblay suggests that “after what I had described to him regarding the assumption of my IP by SONY BMG ZOMBA, that I am responsible for Policing my own Intellectual Properties”. Of course this is an impossibilty. If Gary Wade Leak, and Howard Stringer are beginning to feel the “high tech pinch”, it is my opinion that perhaps they level the playing field and welcome TRUE open discussion, to admit their corporate wrong doings. I will continue to simultaneously educate the public as well, that they may have a BIG PICTURE frame of what is truly transpiring in the game of Intellectual Property protection and ownership.
Please feel free to contact myself regarding this or anyother music related copyright infringement. Michael Dean Hajas
mdean707@hotmail.com
Like the Website, nicely designed for SEO purposes. Remember, if you can, to spread out your Keywords….
so true:
- if i play a CD i buy at a party will that put me in copyright infringement? — I agree shiny. How can the artists (not the labels since clearly the artists have everything to lose from file sharing and not the labels…no deeeefffiiiinnnitely not the labels who are losing) earn money if everyone is listening to them at a party? The RIAA is crazy!
- “If you’re selling water in the desert and it begins to rain,” said Nesson, “you need a new business.” — i agree Mr. Nesson. intellectual property is like fire. you don’t buy it. you get it from someone else’s “candle”
- It was only through mass civil disobedience that such a law was repealed. — HELL YEAH!
-
ARTISTS AREN’T LOSING FROM FILE SHARING. THE FUCKING GREEDY CAPITALIST CARTELS ARE!
“The purpose of a law is to serve and protect the interest of a society as a whole, and not a select group of individuals.”
THIS IS EPIC. If laws in a government serve a few individuals, then the government form is aristocratic. No, not even. TOTALITARIAN is more like it!
Thanks to “William Burns, shiny, I agree!” for pointing it out.