Interesting, some great examples in these followups, thanks! But why not mention the concrete products?
Yeah, you seem to want to have your cake and eat it too. Doesn't produce a lot of sympathy. Think again about how to make your software free but still want users to pay. What about keeping value-adding plugins or frontends closed and opening the core? If you open source but limit ability of people to make use of the core, what exactly do you expect to gain from such a "community"?
Still, take a look at the licence of qmail. This worked not so bad for them, and might be the right equilibrium. If you just want legalese for your scenario, take a look at Microsoft's Shared Source licences.
> The problem is, how do you determine who's disadvantaged?
Money, as it can be used to obtain pretty much all other advantages.
> but when you start to look at it carefully there's all sorts of possible issues. Some families are better at budgeting than others, so a family with lower income might have more money available for the kids than a family with higher income
This is not an inequality that we can (or should) correct for. People who work harder have a natural advantage. It's not right to take that away, as doing so hurts everyone. It was by gaining enough advantages to live lives where people could spend their time studying things like science that we obtained what we have now. We would all be worse off without this.
> It's a lot easier to tell if somebody is from X or Y group than to determine their level of disadvantage and what's necessary to help equalize their opportunities.
I disagree both with the idea that it's easier and the idea that it advances any sort of good for society.
There's a stable solution for that: help everyone who is disadvantaged, regardless of what they were born as. This will fix the bias over time without creating new victims.
Somehow it never gets put forth as an option, because enough people are more interested in their self-interest than in equality for everyone.
In that case, you add x kg to the lighter side. But that's not at all what gets advocated. They advocate adding x kg to the X group or the Y group or whatever, rather than helping all disadvantaged people equally. If we always help those who are disadvantaged equally--regardless of whatever traits they were born with--the scales will tend towards balancing and the group interests will tend to be more aligned, as we're not deciding which groups are worthy or not worthy of society's support.
If we're always trying to figure out which group is or isn't disadvantaged based simply on group membership, rather than any observable facts, we trend towards a world where the group interests are in perpetual conflict. This is why equality cannot be achieved by perpetuating inequality against future generations. As shown, there's a way to address past inequality without creating new injustices that's stable over time.
I don't know about you, but I don't want to live in a world where society decides that you have less rights than someone else because of how you were born. Anyone who advocates treating others as lesser due to how they were born is some kind of KKK-level scumbag in my book.
No, if you haven't registered the work, you're only able to get actual damages (which is something like your 'customary rates' but it depends on what you can prove) rather than statutory damages and attorney's fees. Actual damages are close to what you said, but statutory damages are not "punitive" damages at all.
But don't take my word for it, read the actual law on the subject.
Oh, and it so happens that you can register just before filing suit, but a registration that isn't timely doesn't have the same presumption of validity that it would if you were registering long before there was a lawsuit close on the horizon.
If other judges follow this precedent, it will be the death knell of civil litigation involving the internet in any way. I don't like how trolls do business, but I don't think changing the rules like this is a good idea overall.
This isn't changing the rules. This is following the rules.
See my article in the ABA's Judges Journal about how judges had been bending the rules for the RIAA. "Large Recording Companies v. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigation". The Judges' Journal, Judicial Division of American Bar Association. Summer 2008 edition, Part 1 of The Judges Journals' 2-part series, "Access to Justice".
Remember, Malibu Media can just change venues too and start this all over again... This judge didn't do anything worth while for you and me and opened himself up to an appeal where he obviously will be slapped. About the only thing he accomplished is getting Malibu Media out of his courtroom and off his docket, for now. Nothing else will change.
I beg to differ.
Malibu Media can't choose the venue, or the judge.
If Judge Hellerstein's decision is followed by other judges, it will be the death knell of the present wave of Malibu Media litigation.
I fully appreciate your perspective and I agree that the waters are getting pretty muddy when you start trying to tie an IP address to a person, but the issue here is the issuing of the subpoena and not letting Malibu Media pursue discovery. They must be allowed to protect their rights in civil court, and that means they must be allowed to subpoena third parties for information so they can move from "John Doe" to an actual name and in this case, that takes a subpoena from the court.
While your argument for discovery has some logic to it, it is based on a false assumption of fact : that Malibu Media, once it obtains the name and address of the internet account subscriber, will serve a subpoena on that person in an attempt to find out the name of the person who should be named as a defendant.
Malibu Media's uniform practice, once it gets the name and address, is to immediately amend the complaint to name the subscriber as the infringer/defendant and then serve a summons and amended complaint, not a subpoena, on the subscriber.
This is in every single case .
I'm not so sure I agree that this make sense...
You didn't read the judges 11 page opinion then, where he makes his reasons very clear. Among other things, the trolls claim that they need the information to take people to court, but they never do; they just abuse the courts as a cheap way to get information for their blackmail scheme. The point that an IP is not an ID is exactly the point here, because the copyright troll wouldn't have any right to the name of anyone than the copyright infringer. And the fine judge found out that these copyright trolls have in several instances just ignored court orders and have just lied to the courts.
There's apparently a blanket rule against using the court system to conduct fishing expeditions.
If so, most judges have been unaware of it these past 10 years.
Hi Ray, nice to see the NYCL moniker around here again. I have a few questions if you're willing. First, you indicate that a judge has denied discovery due to several factors, one being that an IP address does not identify any particular individual. Can you speak to the weight or breadth of this specific Court's opinion here, in layman's terms? I see references to the Eastern and Southern districts of New York, might this decision influence cases outside of those jurisdictions?
It's not binding on anyone. But Judge Hellerstein is a very well respected judge, so it will probably have a lot of 'persuasive authority'.
Second, this business of "if the Motion Picture is considered obscene, it may not be eligible for copyright protection." I've read about certain cases where the Court stated that obscenity has no rigid definition, but "I'll know it when I see it." Does that have any bearing on the Malibu case? Was this some kind of completely outrageous pornography, where any community standard would likely find it to be obscene, or was it just run-of-the-mill porn? Would it matter either way? Would the opinion have likely been the same if the case involved a blockbuster Hollywood film instead of a pornographic and potentially obscene film?
I haven't researched that question yet, and I may well be litigating that issue in the near future, since I have several cases against Malibu Media which are now in litigation mode... so all I can say is, stay tuned.
Lastly, I'm curious whether or not you've kept up with developments in the case regarding Prenda Law, and how you might compare this case to that one, if at all. I try to read Ken White's PopeHat blog every once in awhile to see how poorly the Prenda copyright trolls are faring. It doesn't look good for Prenda, and I wonder if you would put Malibu in the same proverbial boat.
The Prenda people are a bunch of strange people who, based on reports I've read, may well wind up doing jail time. I know nothing about the Malibu Media people. If I did find out something really bad about them in would probably wind up in my court papers if relevant to the case or to their credibility.
I should clarify: I didn't mean actual expansion of the law. What I meant in regard to item "F" was: since when does difficulty of enforcement, even if they did prove it, justify loosening the standards of evidence? I did not think that was allowable.
Well I knew exactly what you meant Jane, even before you 'clarified' it.
Hi, NYCL! I haven't noticed you around here much lately. Is item F even a thing? Since when does the difficulty of enforcing a law allow judicial expansion of the law? I thought that idea had been thoroughly buried a long time ago.
I have to agree with you Jane Q. For 10 years I've been trying to wake the courts up to the fact that they're not supposed to bend the law to help content owners just because the content owners don't know who committed the infringement. Glad to see them coming around.