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Monthly Archive for December, 2010

twittering and blogging

fern liked my doc, clear and straight, lifts my spirits, strengthens my resolve, see ireland call for rethink and ok, tweeted juan carlos and rethink music, rethink copyright, responded to z’s great net neutrality piece with my question, how does copyright relate, see z and ethan and jon speaking out to the world at a level wikileaks is only now bringing into focus, how do we manage our global information space, are we capable of governing ourselves. z offers a metaphor as cyber tool to conceptualize the problem, speaking at the level of assange. this is the news, that recognition of the cyber era is finally dawning on mass consciousness, next that such a consciousness exists and we participate as its creators and actors who express it


COPYRIGHT in the hands of homeland security

similarity in copyright and secrecy enforcement coming to the surface

Government shuts down music blogs with “complex symbiosis with the music business

“if you’ve ever been in a marketing meeting at a record label, it’s ‘Hey, can you leak this to the blogs?’ Leak is now a marketing verb.”

“For now the seized domains are in legal limbo. David Snead, a lawyer specializing in Internet cases who is representing the owner of, speculated that it might be 30 to 60 days before he would be able to see a seizure order. “The government is providing zero information to help us determine what he is being charged with,” he said. “It’s a black hole.””

will joel’s issues be heard



Children’s understanding of copyright and fair use, and how it changes over time


to testify to the human impetus to share songs and the ubiquity of the songs joel shared on the net.

* Incubus – New Skin
* Green Day – Minority
* Bad Religion – American Jesus
* Outkast – Wheelz of Steel
* Incubus – Pardon Me
* Sublime – Miami
* Nirvana – Come As You Are

If one searches for any of these songs on YouTube today, one finds numerous instances of each, sometimes numbering in the dozens or even hundreds.


For the overwhelming majority of users, file sharing is purely for enjoyment and sharing with friends in an entirely non-commercial setting. Live music performances are in demand and that industry branch is flourishing and utilizing Internet technology. The traditional mass-market music CD album sales are in terminal decline due to technology progress and destructive business strategies of the past decade.

Why is my brief not helpful to the Court?

The Supreme Court continues to address cases where the decision turns on the intricate interpretation of a single word in a statute or regulation. But increasingly the cases that most engage the justices and that matter most to the court are about interpreting the Constitution and its allocation of power.

In Citizens United, in which the court unleashed corporate, union and other money into electoral politics, the majority overturned a century of precedent that it had twice recently reaffirmed. It did so by moving past the limited controversy that was actually in the case and deciding a sweeping issue of constitutional law that no party had raised for the justices to consider.

It also inserted itself where the court has said it should be most restrained, deferring to other branches with more competence to decide questions about the workings of politics, including about the role of money.

thank you lincoln

Judge Alito gets it

Whitney Harper, Petitioner v. Maverick Recording Company, et al.

No. 10-94.


November 29, 2010, Decided

JUSTICE ALITO, dissenting from denial of certiorari.
I would grant the petition to consider the question whether 17 U.S.C. § 402(d) applies when a person is found to have engaged in copyright infringement by downloading digital music files. Un-der § 504(c)(1), an infringer is ordinarily liable for statutory damages of “not less than $ 750 or more than $ 30,000” per work infringed. In a case involving an “innocent infringer,” however, the minimum statutory damages that must be awarded are reduced. Specifically, if the infringer proves that he or she “was not aware and had no reason to believe that his or her acts constituted an in-fringement,” then the minimum statutory damages per violation are $ 200. § 504(c)(2).

In this case, a 16-year-old was found to have infringed respondents’ copyrights by downloading digital music files. The District Court held that there were genuine issues of fact on whether she qualified as an innocent infringer, but the Court of Appeals reversed, concluding that another provision, § 402(d) foreclosed the innocent-infringer defense as a matter of law. Section 402(d) provides, with an exception not relevant here, that if a prescribed notice of copyright “appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” (Emphasis added.) The term “phonorecords” is defined as including only “material objects.”

There is a strong argument that § 402(d) does not apply in a case involving the downloading of digital music files. This provision was adopted in 1988, well before digital music files became available on the Internet. See Berne Convention Implementation Act, § 7, 102 Stat. 2857. The the-ory of § 402(d) appears to be that a person who copies music from a material object bearing the prescribed copyright notice is deemed to have “reason to believe that his or her acts constituted an infringement,” § 504(c)(2). But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that § 402(d) does not apply. In such a case, the question would simply be whether the infringer “was . . . aware and had . . . reason to believe,” § 504(c)(2), that the downloading was illegal.
The Court of Appeals in the present case adopted a very different interpretation of § 402(d). The court held that the innocent infringer defense was “foreclose[d] . . . as a matter of law” because (1) respondents “provided proper notice on each of the published phonorecords from which the audio files were taken” before they were made available on a file-sharing network and (2) petitioner relied solely on § 504(c)(2) and did not dispute her “access” to the phonorecords under § 402(d). 598 F.3d 193, 198-199 (CA5 2010). Under this interpretation, it is not necessary that the infringer actually see a material object with the copyright notice. It is enough that the infringer could have ascertained that the work was copyrighted. The Fifth Circuit did not specify what sort of inquiry a person who downloads digital music files is required to make in order to preserve the § 402(d) defense, but it may be that the court had in mind such things as research on the Internet or a visit to a local store in search of a compact disc containing the songs in question. In any event, the Court of Appeals re-jected petitioner’s argument that her youth and lack of legal sophistication were relevant considera-tions — a conclusion that would not necessarily be correct if the determinative question were simply whether petitioner had “reason to believe” that her actions were illegal. Although “reason to be-lieve” is an objective standard, it is by no means clear that certain objective characteristics of the infringer — such as age — may not be taken into account.

The Fifth Circuit’s decision may or may not set out a sensible rule for the post-“phonorecord” age, but it is at least questionable whether the decision correctly interprets § 402(d). Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. The Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review.

Motion Denied!


“The Court has fully considered Professor Nesson’s submissions

and concluded that the proposed brief would NOT be of assistance to the court.”


not so much as thank you for the effort


The opening paragraphs of my rejected offering in friendship were:

Federal Rule 59(d) empowers the Court on its own motion
to “order a new trial for any reason that would justify
granting one on a party’s motion.”

Jammie Thomas has been tried three times, each time
according to a script that has led to outlandish jury
awards. Clearly something is wrong in the interpretation and
application of the law that produces and replicates such

Amicus Curiae urges the Court, on its own motion, to
recognize the errors of the previous proceedings against
Jammie Thomas and to enter a judgment in her favor
notwithstanding the verdict.

Here’s the full brief


prelude to disappointment


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HACKED! Not a way to be in touch with friends :<(

Apologies for having to reach out to you like this, but I made a quick trip to the UK and had my bag stolen from me with my passport and credit cards in it. The embassy has cooperated by issuing a temporary passport, I just have to pay for a ticket and settle Hotel bills. To be honest,i don’t have money with me,I’ve made contact with my bank but the best they could do was to send me a new card in the mail which will take 2-4 working days to arrive here.i was thinking of asking you to lend me some quick funds that i can give back as soon as i get in,i really
need to be on a last minute flight that leaves in a few hours.

I can furnish you with info on how you will get me the money. You can reach me via ( as am logged on via a smart device or hotel’s desk phone, the number is, +447045749898.


this well-crafted message begging money was sent, judging by the rush of calls coming in to me, to every email address in my address book.

my gmail account was hacked yesterday morning. my effort to regain control of my account has not yet been successful. it’s no piece of cake, Google offers only a flat web interface with no human behind it and no way to send a message. After my first try i get this back:


Thank you for filling out the account recovery form. We know losing access to your account can be a frustrating experience and we want to help.

At Google, we take your privacy and security seriously. We’re committed to returning accounts only when we’re sure we’re giving them back to the accounts’ owners. Unfortunately, based on the information you provided, we were unable to verify that you own this account. To ensure that we are not compromising the security of the data, we can’t return the account at this

If you can provide additional information to verify that you own this account, please visit and submit another request, providing as much accurate information as possible. If
you’re unsure about specific dates, provide your best guess.

Because Google doesn’t ask for much personal information when you sign up for an account, we don’t have many ways to verify that you own an account. In order to verify that you’re the real owner of an account, we need specific details about your account during the recovery process. We also can’t accept identification documents as a proof of account ownership because we don’t consider this a secure method. For more information on this policy, please visit

If you are unable to provide specific information to recover the account or would like to create a new account, please visit

We apologize for any inconvenience and appreciate your cooperation and understanding.

The Google Account Recovery Team


Please do not reply to this email. If your question was not answered,
please visit the Google Accounts Help Center at

which sends you around the same loop again