This is one of the few strip I would pay to access. While I wouldn't be paying to access the strip itself, I would be paying to support Breathed and to encourage him to continue the strip. I can't really think of many other comic strips, modern or otherwise that I would do this for.
Yes, advertising is morally justifiable as long as there is choice to not be exposed to that advertising. If there is a website that you are required to go to for say the IRS or other government services. Or you're required to go there for your school or some other "required" website, then it gets far more murky. But if you are going to a commercial or entertainment or even a news site, then it is totally morally justifiable, since there is no requirement that you visit that site. You are agreeing to the consumption of the content for "free," you are really paying with your attention, and there's nothing wrong with that.
Then when you throw in AdBlock and it's ilk into the mix, which allows you to bypass the attention sale, I think it's totally justifiable.
To take it a step further, if you could somehow mandate (haha) that advertising be easily blockable, then it goes even further into the justifiable category, since only those wish to see the advertising would be seeing it. That's the choice... We should not limit people in what they can and can't do just because we don't agree with where we "spend" out attention. Not that anyone is suggesting that. I don't think the question is whether it's morally justifiable or not, since advertising really doesn't have a moral component, so long as there is choice (and there currently is) - if and when the advertising crosses over into the forced and unavoidable advertising, then it absolutely is NOT justifiable under any circumstance.
I really think that is the ultimate crux here: If a person can avoid the advertising (either through a switch, through AdBlock et al or by not visiting the site) then it's totally justifiable. If it is forced upon the person or on a site that you are required to visit for something that is unavoidable (Government services, etc...) then no, it's not justifiable at all.
Other than that, the free market should decide. If the advertising is too much on a site, then don't visit it... that company will either change it's ways or go out of business.
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.
I think that if this troll can prove they have a copyright on the material and the right to enforce it, they will have a good case to appeal this decision and it will likely be overturned.
You also have to prove that the person you're suing actually committed the infringement. It's not enough that they paid the bill for an internet service account that somebody used to commit an infringement.
It's like how a real terrorist would not joke about a bomb at an airport. But someone who does is detained or arrested, and time is spent by TSA that could be better spent looking for real terrorists.