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User Journal

Journal Journal: ABA Judges Get an Earful about RIAA Litigations 5

Well, I was afforded the opportunity to write for a slightly different audience -- the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges' Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer, 2008, 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations', in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could make it a more level playing field. I'm hoping the judges mod my article '+5 Insightful', but I'd settle for '+3 Informative'. For the actual article go here (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)
User Journal

Journal Journal: eBay beats Tiffany's in trademark case 2

Tiffany's has lost its bid to hold eBay liable for trademark infringement of Tiffany's brands taking place on eBay. After a lengthy bench trial (i.e. a trial where the judge, rather than the jury, decides the factual questions), Judge Richard J. Sullivan has issued a 66-page decision (PDF) carefully analyzing the facts and legal principles, ultimately concluding that 'it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites'.
User Journal

Journal Journal: Vatican Prepares for Possibility of Extraterrestrial Life 4

How robust is your religion? Have all the boundary cases been tested and thought out or does it have more holes and contradictions than the USSR's Penal System? Well, the Vatican is shoring up some questionable parts of Catholicism in regards to those pesky extraterrestrials that may or may not exist. In fact, some major theologians are speculating that each sentient creature would need its own Jesus Christ to save them from certain doom while others claim that it was a one shot deal for everybody. Still others speculate that there could be an alien race that never committed sin. Guess the movies have it wrong. A recent Vatican Newsletter proclaims: "The extraterrestrial is my brother."
Music

Journal Journal: Kill Dash Nine 1

Alright, on an early Friday morning, this live performance brought a genuine smile to my lips.

From the lyrics:

You're the tertiary storage; I'm the L1 cache.
I'm a web crawling spider; you [sic] an Internet mosquito;
You thought the 7-layer model referred to a burrito.
You're a dialup connection; I'm a gigabit LAN.
I last a mythical man-month; you a one-minute man.

Kill Dash Nine!

Unix

Journal Journal: Unix Timeline 3

There's a tiny graphic depicting the time line of Unix. I found it interesting as I've never realized the sheer volume of incarnations of Unix until now.
User Journal

Journal Journal: Dow Jones MarketWatch likens RIAA to the Mafia 11

According to commentator Therese Polletti at Dow Jones MarketWatch, "the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers." Among other things she cites the extortionate nature of their 'settlement negotiations' pointed out by Prof. Bob Talbot of the University of San Francisco School of Law IP Law Clinic, whose student attorneys are helping private practitioners fight the RIAA, the illegality of the RIAA's use of unlicensed investigators, the flawed evidence it uses, and the fact that the RIAA thinks nothing of jeopardizing a student's college education in order to make their point, as support for the MAFIAA/Mafia analogy.
Wii

Journal Journal: Does the Wii Alienate You? 2

Half a week ago I was lucky enough to have a friend who works at Best Buy hook me up with a Wii. I've been playing Smash Bros fairly obsessively but it's not like Warcraft or Star Wars Galaxies obsessive. Why is this?

I found an interesting article about Sega claiming the Wii has been inappropriately written off as being not for 'hardcore' gamers. So I would like to ask Slashdot if they, as members of a gaming community, feel that the Wii is inaccessible because it doesn't offer the time consuming grind of achievements (like the XBox 360) or even the endless single player RPG (like the PS3)? Is it seen as a system purely for the 'casual gamer' and not someone who wants to dump a whole Saturday into progress? Is it's popularity based on this image? I remember the backbreaking days I put into Gauntlet & Bionic Commando, has Nintendo forgotten the games that require hours and hours of practice and finesse? Is this a side effect of the occasionally glitchy and not too precise wiimote?
User Journal

Journal Journal: Class action complaint against RIAA available online 4

Recommended reading for all interested in the RIAA's litigation war against p2p file sharing is the amended class action complaint just filed in Oregon in Andersen v. Atlantic. This landmark 109-page document (pdf) tells both the general story of the RIAA's campaign against ordinary folks, and the specific story of its harassment of Tanya Andersen, and even of her young daughter. The complaint includes federal and state RICO claims, as well as other legal theories, and alleges that "The world's four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music." The point has been made by one commentator that the RIAA won't be able to weasel its out of this one by simply withdrawing it; this one, they will have to answer for. If the relief requested in the complaint is granted, the RIAA's entire campaign will be shut down for good.
User Journal

Journal Journal: EFF travels to Arizona to argue Howell case

Although based in San Francisco, and only an amicus curiae in the Phoenix, Arizona, case of Atlantic v. Howell, the Electronic Frontier Foundation is sending its senior intellectual property lawyer Fred Von Lohmann to Phoenix to argue the Howell case, on behalf of the defendant, who is not represented by counsel. Due to the RIAA's attempt to take advantage of Mr. Howell's being undefended to try to convince the judge that merely 'making files available for distribution' -- i.e., just having them on one's computer in a manner that is accessible to sharing -- and that copying files from one's cd onto one's computer in mp3 format is itself "unlawful", EFF filed an amicus brief in January. Now it's taking the unusual step of actually sending someone to the courthouse to orally argue the motion.
User Journal

Journal Journal: Should RIAA's investigator have to disclose backup? 12

A technology battle is raging in UMG v. Lindor in Brooklyn over whether the RIAA's investigator, SafeNet (formerly known as MediaSentry), which has produced certain *txt printouts, now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the other side. SafeNet and the RIAA say no, the information is "proprietary and confidential". Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought is here (pdf). MediaSentry has produced 'none of the above'. "Put up or shut up" says one commentator to MediaSentry. What do you say?
User Journal

Journal Journal: Connecticut Judge rejects RIAA 'making available' theory 3

A federal judge in Connecticut has rejected the RIAA's "making available" theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion (pdf), Judge Janet Bond Arterton held that the RIAA needs to prove "actual distribution of copies", and cannot rely -- as it was permitted to do in Capitol v. Thomas -- upon the mere fact that there are song files on the defendant's computer and that they were "available". This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior.
Books

Journal Journal: Mikhail Bulgakov's A Dead Man's Memoir (A Theatrical Novel) 1

As a regular reader of Slashdot, I am often amazed at the litigation that artists--especially musicians--have to deal with. The lawyer profession is almost almost a pox upon their kind. When it should not be, lawyers should be working with musicians to protect what is theirs. And the abuses, mistreatment, scamming & lying they face from their managers, labels, publishers & contracts makes it a wonder to me that any artist makes a living at all!

A friend in college introduced me to the works of Mikhail Bulgakov after which I immediately read and fell in love with his most famous work, The Master and Margarita . Spurred by that I read Heart of a Dog yet could find no other novels at any of the used bookstores. Bulgakov was a Ukrainian born Russian novelist and playwright who suffered suppression and torment by the Soviets. Oddly enough, he found favor from Stalin which was possibly the only thing that kept him from a much worse fate. So he is a rare gem that was allowed to write novels & plays which he wrote with furious satire against those manipulating his life and existence.

Recently in 2007 Andrew Bromfield translated A Dead Man's Memoir (A Theatrical Novel) for Penguing Classics and I found it at a Border's Books of all places! I have found that I can order translations of several other of his works but for now I would like to discuss A Dead Man's Memoir as I feel it pertains more and more to present day America than it does the historical Soviet Union.

The books main character, Sergei Maksudov, is a failed novelist. This is Bulgakov's satire of himself. Maksudov is not a great legal expert and meets a man through a friend who will publish one of his manuscripts in a literary magazine. But after he sells the rights (for very meager sums) to publish it to this man, nothing is ever published. What really happened in Bulgakov's life when he did this was a man named Zakhar Kagansky traveled to Europe with the ill conceived contract and posed as Bulgakov's legal advisor! He spent fifteen years collecting royalties on Bulgakov's plays & novels!

So instead, Maksudov turns to writing plays. He makes the mistake of signing a contract with a theater interested in producing his play. But he at once realizes that they are not so interested in producing it as they are turning it into something ... more acceptable or merely just more to their likings. His author friend--a man trained and broken already by these types--explains to him that he should have agreed to everything and then simply never done it. This is what it takes to progress as an artist.

One of my favorite parts of the book is when he faces the entire board (including their leader and the very manipulative Ivan Vasilievich) of that theater and comes to a very harsh realization:

'As far as I can understand, my play has not been found suitable, and I ask you to return it to me.'
For some reason, these words caused agitation. Armchairs shifted, someone leaned down towards me from behind and said:
"No, why put it like that? Come now!"
Ivan Vasilievich looked at the jam and then, in consternation, at the people around him.
'Hmm ... hmm ...'--he began drumming his fingers--'we are saying in a friendly way that to perform your play would mean causing you terrible harm! Quite horrific harm. Especially if Foma Strizh takes it on. You will find life unbearable and you will curse us ...'
After a pause, I said:
'In that case I ask you to return it to me.'
And in that moment I quite distinctly glimpsed malice in Ivan Vasilievich's eyes.
'We have a little contract,' another voice suddenly spoke up, and Gavriil Stepanovich's face appeared from behind the doctor's back.
'But your theater does not wish to perform it, what do you want it for?'
Then a face with very lively eyes behind a pince-nez moved closer to me and in a high, thin tenor voice said:
'Surely you won't take it to Schlieppe's theater? What will they make of it there? Why, they'll have brisk little officers strutting around on stage! What good is that to anyone?'
'Under the terms of the current statutes and interpretations it cannot be given to Schlieppe's theater - we have a little contract!' said Gavriil Stepanovich emerging completely from behind the doctor's back.
'What is going on here? What do they want?' I thought and suddenly, for the first time in my life, I had a terrible, suffocating feeling.

So used and manipulated leaves Maksudov a mental wreck and wretchedly jaded. Bulgakov opens chapter 14 talking about Moscow and a stain he has on his clothing, perhaps drawing parallels to the people he deals with daily there:

How, can you tell me, can grease stains be removed from clothing? I tried this way and that, one thing and another. And it's quite remarkable: for instance, you soak it in petrol and the result is wonderful - the stain dissolves, dissolves and disappears. You feel happy, because there is no torment worse than a stain on your clothes. It's sloppy, it's bad, it gets on your nerves. You hang the jacket on a nail, and when you get up in the morning - the stain is back again, only now it has a slight smell of petrol.
The same thing after boiling water, dilute tea, eau de Cologne. Its' a real curse! You start getting angry and twitchy, but there's nothing you can do. No, it's clear that anyone who has once put a stain on his clothes is going to walk around with it until the suit itself wears out and is thrown out for ever. It's all the same to me now, but I wish others fewer of these stains.

So true of the tricks and contracts that artists find themselves in. Ever wonder why The Artist Formerly Known as Prince is once again Prince? Contract dispute! And I'm sure he had some of the best lawyers working for him and reading over that document before he signed it! How much longer before that stain is back?!

Fortunately, his play is eventually produced as the theater is under criticism for not being contemporary or independent (which is in its name). From that point on, every horror story ever told of a book or play being produced into a movie or stage is realized by our hero. Aside from massive ego complexes, critics mad with jealousy & bad acting instructions, he has to deal with his contemporary play being directed by an older, more esteemed man who wants to censor and edit the play. Bulgakov's real life hardships were no different as directors and theater managers tried desperately to cleanse his plays of any political satire or criticisms--especially of the current government!

This drives him to nearly complete sanity. At night he practices lying to Vasilievich and dealing with him so that his play will be produced without censorship. He comes to this harsh realization:

One night I decided to check things - I pronounced my monologue without looking in the mirror, and then cast a furtive, squinting glance into it - and was horrified.
Gazing out at me from the mirror was a face with a wrinkled forehead, bared teeth and eyes that betrayed not only anxiety but also ulterior motive. I clutched my head in my hands realizing that the mirror had misled and deceived me, and I flung it to the floor. A triangular piece sprang out of it. They say it's a very bad sign if a mirror breaks. Then what can be said of the madman who deliberately breaks his own mirror!

A harsh realization that you are dealing with these kind of people, an even harsher realization when you realize that you've become one of them. Now a nearly a raving lunatic who has taken to talking to himself, he depends entirely on living at the theater where his play is being produced. It is the only thing that keeps him going--to know that his story might be told to people to provide them enjoyment and to hear it and recognize with the characters.

However, the production goes very slowly and the director (Vasilievich) is taking entire days to force the actors and actresses to perform strange acting rituals that are supposed to make them better actors. While the play does not progress at all! By this time, Maksudov & Bulgakov have become cut down and unsure of themselves, the lunatic says to himself near the end of the book:

'Yes, this is all astonishing. But it is only astonishing because I am an ignoramus in these matters. Every art has its own laws, mysteries and methods. For instance, a savage would think it funny and strange that anyone should scrub his teeth with a brush, filling his mouth with chalk. To the uninitiated it appears strange that instead of proceeding directly to operate on his patient, a doctor first does all sorts of strange things to him, for instance, he takes blood for analysis and so on ...'

How many times do you think that a musician, actor, writer, painter or graphics artist has been instructed not to do something? How many albums do you think come out these days with the intensity of the sound on the CD mastered so that it is all the way up all the time? How many artists are allowed to keep the sound that made them famous in their small towns? How many movies are made that lack a formulaic sure fire success model for today's theaters? Are we not living in a society where what is 'art' is defined by those with the funds to publish it?

If you don't read A Dead Man's Memoir, at least recognize that to be an artist of any kind today doesn't mean starvation necessarily but instead torment, manipulation and in the worse cases being stripped of your dignity & sanity.

Books

Journal Journal: Help Amazon Select Finalists for Writing Competition! 1

Just months after launching its CreateSpace site for people who want to be published, Amazon has asked readers to download and rate the semi-finalists in their author competition. Check out the sci-fi/fantasy selections and help them pick someone good! Although all of this reeks of the beginning of a good Bulgakov novel/play, I can't help but read all of these entries!
User Journal

Journal Journal: Alpha Wikia Search Available

So, as you may have heard, the Alpha for Wikia Search has been launched and it is interesting. The UI is clean and looks very mellow in bluish cloudy ways.

Oddly though they had nothing when I searched for 'slashdot' so instead I tried searching for 'bears' to get a result.

The most interesting aspect is the 'miniarticles' that I had the option to start at the beginning of the search results. The purpose of these are mentioned briefly as "Short definitions, Disambiguations, Photos, See also."

I wonder what will start to pop up there and/or why they didn't take shortened versions of wikipedia to seed that. Well, to be fair this is an Alpha and they have a disclaimer:

We are aware that the quality of the search results is low.

User Journal

Journal Journal: U. of Maine legal clinic fights RIAA; first in country

"A student law clinic is about to cause a revolution" says p2pnet. For the first time in the history of the RIAA's ex parte litigation campaign against college students, a university law school's legal aid clinic has taken up the fight against the RIAA in defense of the university's college students. Student attorneys at the University of Maine School of Law's Cumberland Legal Aid Clinic, under the supervision of law school prof Deirdre M. Smith, have moved to dismiss the RIAA's complaint in a Portland, Maine, case, Arista v. Does 1-27, on behalf of 2 University of Maine undergrads. Their recently filed reply brief (pdf) points to the US Supreme Court decision in Bell Atlantic v. Twombly, and the subsequent California decision following Twombly, Interscope v. Rodriguez, which dismissed the RIAA's "making available" complaint as mere "conclusory", "boilerplate" "speculation". The 2 students represented by Cumberland join the 8 students represented by a prominent Portland law firm, bringing to 10 the number of University of Maine students fighting back in this case.

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