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“So Give Up Traditional Copyright Enforcement” – Terry Fisher

here in new version

terry fisher speaks to #rethinkmusic

WS510200.terrytwo (two minutes)(sound not so good, but substance is there)

there seemed unanimity in the room yesterday that we can’t halt the march of technology. we can’t turn back the clock, we can’t hold back the tide. One way or the other, there was acceptance of the impossibility of returning to the “Golden Time of the 1980’s.”

More controversially there seemed pretty substantial consensus that even if we could turn back the clock, we should not because the benefits of this transition exceed its costs. If true, we ought not institute a graduate response system.

we dodged a bullet with the final draft of the ACTA treaty, which in its earlier phases would have required or nudged a number of countries of that agreement to institute a mechanism in which ISP’s would terminate and blackball subscribers who repeat peer-to-peer copy infringements.

So no, no graduated response, no three-strikes-you’re-out policy.

There also seems to be consensus that we ought not to any longer pursue civil copyright infringement actions against individual file-sharers with the associated draconian statutory damages

So give up on traditional copyright enforcement.

#rethinkmusic LESSIG without POWERPOINT



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.

prelude to disappointment


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John’s American Jury Survey

John’s American Jury Survey

surveymonkey a means of asking questions

Go Dean!

SERGIO! tonight on HBO

what is its message?


Great dinner last night at Marty Peretz house, following a showing of the upcoming HBO movie, Sergio. We spent time at the dinner wondering what the two sentence follow-on should be to best present Sergio to the public, but didn’t really get very far. Cass Sunstein, there in his role as Samantha Powers’ spousal partner, otherwise very quiet in the evening, suggested, “An American Story.” That seems odd at first, since Sergio was a man from Rio, a champion of the United Nations, yet also fitting as a description of this movie, which had as its stars not Sergio but two American soldiers in Iraq and a beautiful woman from Argentina. In one sense this film is a search-and-rescue story. In another, a love story, touching and complicated. Yet finally and ultimately, perhaps, an American story, set in Bagdad in May 2003. There are those seeing this film who will want to know more about Sergio, the charismatic figure at the center of the story, a man whose adventures and intellectual trajectory took him from Rio to the streets of Paris when he was a young student with radical politics studying in Paris at the Sorbonne to the plight of refugees displaced by genocides and wars. There will be those who want more of the love story.

I want more of the fine conversations that came following, and the fine company. Thank you Marty.

i am awake!

fern created a beautiful and eloquent book, i am awake!
and received a remarkable opening review from Head Butler