Aug 09
11
“D” was something to be feared when I was a lad; especially if it
was written in red on the top right corner of a homework assignment when it
came back from “marking”.
The recent Joel Tenenbaum case in the USA
may have backfired in a bigger way than any previous litigation activity
undertaken by the RIAA.
http://www.techdirt.com/blog.php?tag=joel+tenenbaum
http://www.p2pnet.net/story/26502
to name only a couple. And there is a lot of coverage….
Google
Results 41 – 50 of about 26,800 for Tenenbaum
“ruling”.
Joel has been elevated to near sainthood status with
thousands of internet users expressing dismay, disgust and derision (three “D’s”) at Judge Nancy Gertner ruling.
The mistake that Judge Gertner may have made:
issued an order granting the record label plaintiffs' motion
to exclude Harvard Law
School professor John Palfrey as a
defense expert for Joel Tenenbaum,
ruling that his opinions about “digital
natives” are irrelevant to the case.
Given that the jury had been weeded out of anyone that had
either “burned a CD-Rom” on their computer or had downloaded music form the
internet either legally or illegally and;
The majority of juries are essentially made-up of the lower
economic status citizens of our land.
(When was the last time you saw the CEO of IBM or Microsoft
or SUN or Google or in fact any large Corporation on a jury?)
Vikram Amar on the Findlaw.com site summarizes the essential
problems with modern day juries.
* In search of “impartial” jurors, the selection
process seems stacked against the educated, the perceptive, and the well
informed, in favor of persons more easily manipulated by lawyers and judges.
* Attorneys exercising their clients' rights to
“strike” candidates from the jury pool slyly and cynically seek to
exclude jurors on the basis of race, gender and other supposed indicators of
bias.
* Courts subject citizens to repeated summonses,
intrusive personal questioning, cramped waiting rooms, financial hardships and
long and inefficient trials. Unsurprisingly, many citizens – perhaps the
majority – struggle mightily (and successfully) to avoid jury duty altogether.
* In court, the jury is unfairly subjected to rules that
presume jurors are incapable of impartial deliberation, and that provide little
help in their understanding points of law or evaluating witness testimony.
* The scales of justice seem tipped in favor of rich
litigants with high-priced counsel.
The jury was “fixed”. In Joel’s own words (from a recent
article in the Guardian Newspaper)
“Oppenheim’s questions were more conventional: “Do you
have any opinions about record companies?” and “Do you think record companies
should have the right to enforce their copyrights?” Some people were
well-versed in the debate and had even talked to their kids about downloading –
they were dismissed for having bias against the record companies. Other people
were also dismissed because they had downloaded music themselves. The result
left us with a chemist, a pet trainer, a nurse assistant, a business
development manager, and others with nothing in common but me.”
I would have thought that the Judge would have seen the
benefit of the Jury receiving an understanding of the alternative mindset that
today’s younger folk have. Especially when it came to the quantum of damages –
but no – it was not to be. Maybe, Nancy
was never a Teenager.
Teenagers have always wrought change. In my fathers day it
was Molotov cocktails and Russian T-38 tanks in Budapest’s
“Lenin” (Freedom – cough bullshit cough
– Square) square.
In my day it was time for “Love not War”.
I think the new upcoming mob will have a different
definition of what is or isn’t appropriate copyright periods for protection of
intellectual works once they get into power.
And – it’s coming – soon.
Has anyone noticed the trend for national leaders to be
younger and younger these days?
The voters want hip. (Hey Obama, are you listening?) Hip does
not mean “Handcuffs and Bankruptcy”.
Pushback comes in many forms. Occasionally – outright
defiance.
On the Mininova Torrent site: http://www.mininova.org/tor/2830847
A file with the complete list of the songs that Joel
downloaded.
Joel Tenenbaum Track List – hugs to the RIAA (final)
Download this torrent!
or use the magnet link
Category: Music > Other
Total size: 176.24 megabyte
Added: 3 days ago
Share ratio: 4 seeds, 0 leechers
Last updated: 19 hours ago
Which I got to by following the path from “I Too Downloaded
Them” Blogspot which has even prepared a
number of nice banners for those people that wish to protest the judgement.
http://itoodownloadedthem.blogspot.com/
In an RIAA paid for article, The RIAA Musings On Tenenbaum
Case, paid blogger Cara Duckworth stated a number of “facts” about the case. No
doubt eager to provide balanced reporting to counter the thousands of blog
articles, tweets and newspaper coverage that almost without exception is aghast
at the judgments’ apparent lack of jurisprudence.
FACT: Mr. Tenenbaum is a hard-core, habitual and unrepentant
p2p abuser who has caused harm to the music community.
…
FACT: The best anti-piracy strategy is a thriving legal
marketplace that gives music fans a wide variety of innovative options where
they can get their favorite music in affordable, hassle-free ways. Because
there are some people like Mr. Tenenbaum who believe music should be free,
we’ve had to enforce our rights to protect all those hard-working individuals
who create the music.
…
Mr.
Tenenbaum still can’t admit that what he did was wrong.
…
Nobody can argue that people don’t deserve to be paid for
their hard work. But through all his illegal actions, Tenenbaum has argued
exactly that. Despite all this, we remain open to settling, as we always are
and have been.
Actually, no. Joel Tenenbaum hasn’t argued exactly that.
When Joel Tenenbaum downloaded his music (circa 2004), all those fine online music
emporiums that Cara Duckworth claims are there from the efforts of the RIAA,
weren’t.
In fact, it was through the actions of Joel Tennenbaum and
others that the industry has been forced to enter the digital age; whick of
course Nesson demonstrated by calling as his sole witness Wayne Marshall, an
ethnomusicologist from the Massachusetts Institute of Technology, as his sole
witness to demonstrate the current ease of buying an MP3, or digital song, from
Amazon.com for 99 cents.
During his closing argument, Nesson re-iterated this theme, by explaing that in
August, 2004, “Tenenbaum didn't have
the option of getting an MP3 song in a sleek and easy way”
This is the meme for today’s article. That the Juries of
tomorrow should be aware that it was the actions of the unsung heroes [geeks/nerds]
of the nineties and the first few years of this millenium, that dragged the music and entertainment industry kicking and
screaming, digging in fingernails into a thick marble floor from the dark ages
of physical distribution to Digital distribution.
In regards to the other “FACTS” (cough cough bullshit cough)
Joel has seen fit to answer some of the other “FACT” claims
that Ms Duckworth invented……
http://joelfightsback.com/2009/08/corrections-and-clarifications/
Wikipedia defines a Turkeyshoot in military
situations, as:
“a turkey shoot occurs when a group or team catch the enemy
off-guard or out-gunned to the point of being unfair.”
With Team Obama
The Courts
The FBI
And soon the CIA
Out gunning for Joel, I guess he didn’t have much of a
chance.
Although this article Migrants in a digital land quotes Nick
Jones, research vice-president at Gartner;
The Gartner analyst warned how politicians and lawyers
are now becoming involved in IT, yet do not understand it.
“The result is really stupid pieces of legislation,
like the DMCA (Digital Millennium Copyright Act), which was designed for music
and ended up being applied to printer cartridges. Another is
“e-discovery”, which a court recently ruled applies to DRAM. Someone
can come to you with a subpoena saying 'I want to see the RAM state of your
server six months ago.' We know that it is impossible.
“Today we have litigation in the virtual world about
virtual property. The risks soar as the emotional attachment increases. I think
it's only a matter of time before someone sues Microsoft for a $1 million for
emotional damage because some Vista update
wiped the personality from a animatronic teddy bear.
“We will have to educate politicians and lawyers
about these things or we will have even more problems down the line,” he
said.
With Copyright legislation in the mess it is currently in, with
no wriggling room for what now is clearly an activity performed by the majority
of the population (that is, the physical act of loaning your neighbour,
colleague, friend or relative a copy of the great DVD that you just
purchased) –
File sharing is no different. Loaning a digital copy is the
same as loaning a physical copy; yet I have never ever seen the FBI, CIA, (or
anyone looking like the FBI or CIA) in my lounge-room taking notes of who
brought which DVD during those all night movie festivals that the younger male
members of this household instigate on occasion.
Everyone brings a few DVD’s a few six packs and lots of
popcorn and chips. With an average of 15 attendees, I assure you there is a lot
of “sharing” going on.
So I guess I will take two bob each way on the appeal (and
the doubtless ensuing emotional damages claim). Just maybe, justice was denied
with Nancy Gertners’ refusal to allow Fair Use as a defence, leaving no other
avenue for the jury except a black and white interpretation of the existing
legislation.
- there needs to be a legislative challenge.
The appeal may just achieve that. Although I do hope that Tenenbaums' attorney, Nesson might handle the appeal a little differently to the actual case.
But then again, possibly it's all part of some brilliant secret strategy.
References:
What's Wrong With the Modern Jury:
How Our System Can Better Fulfill the Framers' Ideals; Vikram David Amar
http://writ.news.findlaw.com/amar/20040210.html
Jury Hits Tenenbaum with $675,000 Verdict in File-Sharing
Case
S. Qualters The National Law Journal August 01, 2009
http://www.law.com/jsp/iplawandbusiness/PubArticleIPLB.jsp?id=1202432714922
Musings On Tenenbaum Case
C. Duckworth R.I.A.A. August
05, 2009
http://www.riaa.com/blog.php?content_selector=Musings-On-Tenenbaum-Case
Migrants in a digital land
D Sambandaraksa
http://www.marcfievet.com/article-19325576.html
Born Digital
Understanding the first Generation of Digital Natives.
http://www.borndigitalbook.com/excerpt.php
Team Tenenbaum to fight on for those “RIAA has
screwed over”