Comments on: Joel fought back… And we all lost… http://www.innismir.net/article/407 Pointless, vapid ramblings of a surly information security engineer Wed, 28 Apr 2010 01:48:42 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Ben Jackson http://www.innismir.net/article/407/comment-page-1#comment-206 Ben Jackson Fri, 11 Dec 2009 16:24:14 +0000 http://www.innismir.net/?p=407#comment-206 It's the assertion that "Joel violated copyright" -> "Joel didn't want to pay *anything* instead of a lesser fine and did a crazy defense" -> "Joel screwed an awesome opportunity for a lesser fine and fair use expansion" Re: Wired. "You're wrong! I was perfect!" says the guy being lambasted. Sure. So, even if Nesson was right and there is no wiggle room regarding what Joel did, he should have done what any other lawyer would do in that scenario: Settle. It’s the assertion that “Joel violated copyright” -> “Joel didn’t want to pay *anything* instead of a lesser fine and did a crazy defense” -> “Joel screwed an awesome opportunity for a lesser fine and fair use expansion”

Re: Wired. “You’re wrong! I was perfect!” says the guy being lambasted. Sure. So, even if Nesson was right and there is no wiggle room regarding what Joel did, he should have done what any other lawyer would do in that scenario: Settle.

]]> By: Samd12345 http://www.innismir.net/article/407/comment-page-1#comment-205 Samd12345 Wed, 09 Dec 2009 22:28:56 +0000 http://www.innismir.net/?p=407#comment-205 Wired also disagrees with you: http://www.wired.com/threatlevel/2009/12/nesson-2/ Wired also disagrees with you:

http://www.wired.com/threatlevel/2009/12/nesson-2/

]]> By: Samd12345 http://www.innismir.net/article/407/comment-page-1#comment-204 Samd12345 Wed, 09 Dec 2009 21:50:33 +0000 http://www.innismir.net/?p=407#comment-204 You're speaking in "would have"'s that never would have existed *without Joel "stealing" in the first place*. Your tweet: you screwed us out of a vast expansion of fair use because you want to steal music Your implication: "joel stole music" -> "joel screwed us" is not supported. Correct implication: "joel stole music" -> "joel created an opportunity to make us less screwed than we are" *The default is now the same as it was*, except that now there's a greater awareness that fair use could be effective and there's greater public awareness of the need for copyright reform. If you could find a way to condemn the attempt using the past tense (what actually happened) instead of the past conditional (what *could have* happened), then I would follow your logic. You’re speaking in “would have”‘s that never would have existed *without Joel “stealing” in the first place*.

Your tweet: you screwed us out of a vast expansion of fair use because you want to steal music

Your implication: “joel stole music” -> “joel screwed us” is not supported.

Correct implication: “joel stole music” -> “joel created an opportunity to make us less screwed than we are”

*The default is now the same as it was*, except that now there’s a greater awareness that fair use could be effective and there’s greater public awareness of the need for copyright reform.

If you could find a way to condemn the attempt using the past tense (what actually happened) instead of the past conditional (what *could have* happened), then I would follow your logic.

]]> By: Ben Jackson http://www.innismir.net/article/407/comment-page-1#comment-203 Ben Jackson Wed, 09 Dec 2009 15:37:18 +0000 http://www.innismir.net/?p=407#comment-203 Here, let me use gratuitous bolding in my last comment: <blockquote>Simply put, “fair use” is a fairly fluid concept when applied to MP3s. If Joel had argued the merits of his case and Gertner agreed, <strong>it would have set a precedent for other folks caught in a similar position, it also would have dealt a blow to RIAA cases in the future. While fair use is decided on a case by case basis, on the entirety of circumstances of what was done, the precedent set by any rulings by Gertner would have been a blow to the RIAA and a boon for people who use MP3s</strong>. Just remember, the RIAA still thinks ripping your own CDs is illegal.</blockquote> Did I make myself clear or should I break out the sock puppets and go full Sesame? Here, let me use gratuitous bolding in my last comment:

Simply put, “fair use” is a fairly fluid concept when applied to MP3s. If Joel had argued the merits of his case and Gertner agreed, it would have set a precedent for other folks caught in a similar position, it also would have dealt a blow to RIAA cases in the future. While fair use is decided on a case by case basis, on the entirety of circumstances of what was done, the precedent set by any rulings by Gertner would have been a blow to the RIAA and a boon for people who use MP3s. Just remember, the RIAA still thinks ripping your own CDs is illegal.

Did I make myself clear or should I break out the sock puppets and go full Sesame?

]]> By: facebone http://www.innismir.net/article/407/comment-page-1#comment-202 facebone Wed, 09 Dec 2009 12:29:53 +0000 http://www.innismir.net/?p=407#comment-202 Riaa will never bring another of these cases before gertner and no other judge will ever have such an expansive use of fair use. Plus no other case brought will ever deal with the "interregnum." So this is over and fair use is dead in p2p context. No doubt. Riaa will never bring another of these cases before gertner and no other judge will ever have such an expansive use of fair use. Plus no other case brought will ever deal with the “interregnum.” So this is over and fair use is dead in p2p context. No doubt.

]]> By: Sam12345 http://www.innismir.net/article/407/comment-page-1#comment-201 Sam12345 Wed, 09 Dec 2009 05:22:03 +0000 http://www.innismir.net/?p=407#comment-201 So again, how is anyone except Joel worse off now than before the trial started? So again, how is anyone except Joel worse off now than before the trial started?

]]> By: Ben Jackson http://www.innismir.net/article/407/comment-page-1#comment-200 Ben Jackson Wed, 09 Dec 2009 03:45:15 +0000 http://www.innismir.net/?p=407#comment-200 Sam, you're missing the point. The punitive damages are decided on a case-by-case basis. Joel could have been made to pay $4.5 million. The gamble Joel made was the fact that he tried to push that he was right because copyright law was wrong, which was bold and just plain silly. Sam, you’re missing the point. The punitive damages are decided on a case-by-case basis. Joel could have been made to pay $4.5 million. The gamble Joel made was the fact that he tried to push that he was right because copyright law was wrong, which was bold and just plain silly.

]]> By: Ben Jackson http://www.innismir.net/article/407/comment-page-1#comment-199 Ben Jackson Wed, 09 Dec 2009 03:38:42 +0000 http://www.innismir.net/?p=407#comment-199 Simply put, "fair use" is a fairly fluid concept when applied to MP3s. If Joel had argued the merits of his case and Gertner agreed, it would have set a precedent for other folks caught in a similar position, it also would have dealt a blow to RIAA cases in the future. While fair use is decided on a case by case basis, on the entirety of circumstances of what was done, the precedent set by any rulings by Gertner would have been a blow to the RIAA and a boon for people who use MP3s. Just remember, the RIAA still thinks ripping your own CDs is illegal. Simply put, “fair use” is a fairly fluid concept when applied to MP3s. If Joel had argued the merits of his case and Gertner agreed, it would have set a precedent for other folks caught in a similar position, it also would have dealt a blow to RIAA cases in the future. While fair use is decided on a case by case basis, on the entirety of circumstances of what was done, the precedent set by any rulings by Gertner would have been a blow to the RIAA and a boon for people who use MP3s. Just remember, the RIAA still thinks ripping your own CDs is illegal.

]]> By: Samd12345 http://www.innismir.net/article/407/comment-page-1#comment-198 Samd12345 Tue, 08 Dec 2009 17:05:42 +0000 http://www.innismir.net/?p=407#comment-198 So I understand if you're pissed about a lost opportunity that you didn't contribute to or assist in or fuck up your life for, but how anyone is worse off for the effort I fail to grasp. So I understand if you’re pissed about a lost opportunity that you didn’t contribute to or assist in or fuck up your life for, but how anyone is worse off for the effort I fail to grasp.

]]> By: Samd12345 http://www.innismir.net/article/407/comment-page-1#comment-197 Samd12345 Tue, 08 Dec 2009 16:53:59 +0000 http://www.innismir.net/?p=407#comment-197 If your point is that the damage done was in "upping the gamble" to fight the system, then whether the case invoked fair use or not is irrelevant. The gamble was $220k when he started. It's now $2M. If anyone has the balls to make a fair use challenge in a filesharing case, (s)he now braves a $2 million judgment. Unless you're trying to argue that even trying a fair use defense makes the nature of the filesharing case so radically different as to affect what damages are awarded, when in both cases they're just picked from the statutory range. If your point is that the damage done was in “upping the gamble” to fight the system, then whether the case invoked fair use or not is irrelevant. The gamble was $220k when he started. It’s now $2M. If anyone has the balls to make a fair use challenge in a filesharing case, (s)he now braves a $2 million judgment.

Unless you’re trying to argue that even trying a fair use defense makes the nature of the filesharing case so radically different as to affect what damages are awarded, when in both cases they’re just picked from the statutory range.

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