US Supreme Court Decisions [Archive] - Front Office Football Central

Blackadar

06-06-2005, 08:59 AM

It's about time they made some rulings on some pretty interesting cases. USA Today had a good write-up about some of the key ones (and my off-the-cuff view - I have a limited understanding of each of the cases involved and therefore reserve the right to change my mind or add additional supporting information in the future):

McCreary County, Ky. v. American Civil Liberties Union of Kentucky; Van Orden v. Perry - Do displays of the Ten Commandments in two Kentucky courthouses and on a monument at the Texas Capitol amount to impermissible government promotion of religion?

My view: The Kentucky ones were put up in 1999 and as a promotion of religion - they should probably be taken down. The Van Orden v. Perry is a Texas monument that's been there since 1961. Because of its age, I'd say it is more historical in nature and therefore allowed to stay.

Gonzales v. Raich - Does U.S. anti-drug law override state laws that allow the medical use of marijuana to relieve a patient's pain?

My view: It's grown, sold, bought and used within the State of California. I don't see where the Federal Government has any right to enforce their laws on this issue. It's clearly not interstate commerce.

Kelo v. City of New London, Conn. - May a city use its eminent domain power to condemn private property that is not in a blighted area and that would be turned over to private economic development?

My view: This is an issue that really strikes a nerve. I believe eminent domain should be curtailed. This kind of use is garbage - it's a simple taking from the poor and giving it to the rich. Often done under the pretense that the City/County will get more taxes in the long run, it's the taxpayers that foot the bill if things don't plan out.

Metro-Goldwyn-Mayer Studios v. Grokster - Can Internet file-sharing services be held liable under U.S. copyright law for users who illegally download music and movies?

My view: No. Grokster hasn't done anything wrong and it's not their job to enforce the law. All they are doing is providing a service to allow users to share files - what is shared is never stored nor touched by Grokster - and they shouldn't have to control the shared files. The software and business implications of this could be devestating. It opens up/expands a whole new area of product liability. I really hope that Metro-Goldwyn loses big-time.

Town of Castle Rock, Colo. v. Gonzales - Is an individual's right to due process violated if a police department fails to enforce a judge's protection order without meaningful consideration or explanation? The case involves a woman whose three daughters were killed by her husband.

My view: Interesting and sad case. The short of it is that her 3 daughters were killed by her ex-husband when she had a restraining order against him. The police didn't enforce the order at all, so now she's suing them. It sounds like in this particular instance, the police were extremely negligent. But you also don't want a flood of lawsuits. I'd like to see a *very* tailored verdict that could only apply to this case.

Spector v. Norwegian Cruise Line - Does the Americans with Disabilities Act, a 1990 law that protects the disabled from discrimination in public places and transportation, cover cruise ships that operate under foreign flags but stop in U.S. waters?

My view: I would hope not. I like the intent of ADA, but the execution has been horrid. I was working in the pay telephone industry at the time it was passed and it cost us hundreds of thousands of dollars to have to go back and retrofit payphones for ADA compliance. Again, I agree with the intent of the law but the actually execution was extremely poor. I don't want to see bad USA laws now applied to foreign companies. If it's that much of an issue, get Congress to specifically target cruise ships to provide access.

st.cronin

06-06-2005, 09:07 AM

JonInMiddleGA

06-06-2005, 09:22 AM

Blackadar

06-06-2005, 09:27 AM

You may want to rethink your logic on the 10 Commandments issues. The 10 Commandments themselves have significant historical import, being the basis for laws in numerous nation states, and being the foundation for moral law in two major world religions.

That's nice but obviously my point escaped you. It's all in the intent of the display. If they were displayed for "being the foundation for moral law in two major world religions", then the display is an establishment of religion and therefore unconstitutional. If they were displayed as having "significant historical import", then they aren't an establishment of religion and therefore are constitutional.

The Kansas case is particularly interesting. They were originally put up as an establishment of religion - there's little debate about this. After 7 individuals sued - after the suit was established, the county went back and tried to make them part of a larger display by putting in other legal and historical documents around it. So there's a number of questions (the below taken from the Duke University law site):

1. Whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular.
2. Whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols.
3. Whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence.
4. Whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion.

st.cronin

06-06-2005, 09:31 AM

That's nice but obviously my point escaped you. It's all in the intent of the display. If they were displayed for "being the foundation for moral law in two major world religions", then the display is an establishment of religion and therefore unconstitutional. If they were displayed as having "significant historical import", then they aren't an establishment of religion and therefore are constitutional.

My point is that in any case imaginable, either argument could be plausibly made, so using that logic settles nothing.

Blackadar

06-06-2005, 09:38 AM

Just for the heck of it, I decided to compare my hopes for these cases with Blackie's. I figure if we're on the same side of any of these, then it's gotta be a slam dunk that we're right ;). And I said hopes, not expectations nor any sort of legal opinion.

Let's see here ... I'm pulling for the Ten Commandments display in all cases, pulling for the Feds hard on the marijuana case, I'd have to see the specifics of the eminent domain case to pick a side firmly but in general I support the use of e.d. powers, I'm hoping MGM wins everything down to Grokster's surge protectors.

So far, pretty predictable, but ... we agree on the hoped for outcome on the ADA case . And on the restraining order, we agree on this specific case while disagreeing on the bigger picture (I'd say that failing to at least attempt to enforce an order like that is dereliction of duty in all circumstances & thereof should be a fairly broad ruling here).

So, since we agree on those two, my guess is that those will be the two most predictable rulings -- we'll get screwed on both of them.

You're probably right on the getting screwed thing. And I'd agree that grossly failing to enforce the order is dereliction of duty...but you also have to be very careful to not open a flood of lawsuits. Accident at a busy and semi-dangerous intersection? Sue the city. Release a criminal who then holds up a 7-11? Sue the city. It's the taxpayer that ultimately would pay the cost. A broad ruling here could potentially really financially hurt (even bankrupt) citizens by causing tax rates to skyrocket to pay damages and pay the enormous insurance premiums.

For someone who often professes State's Rights and personal responsibility, you seem to really side with Big Government and Big Business on the CA drug, eminent domain and the MGM/Grokster cases. Interesting disconnect...

Blackadar

06-06-2005, 09:44 AM

My point is that in any case imaginable, either argument could be plausibly made, so using that logic settles nothing.

It's all in the context and intent of the display. Much like the context of free speech/expression vs. obscene speech/expression.

Cringer

06-06-2005, 09:48 AM

Let's see here ... I'm pulling for the Ten Commandments display in all cases, pulling for the Feds hard on the marijuana case, I'd have to see the specifics of the eminent domain case to pick a side firmly but in general I support the use of e.d. powers, I'm hoping MGM wins everything down to Grokster's surge protectors.

I thought you were a republican/conservative? Do you guys no longer back states rights and individual property rights?

Scary how much you support government control.

albionmoonlight

06-06-2005, 09:53 AM

FWIW, the interesting cases always tend to come out late in the term because, as you would expect, those take the longest to write and tend to have the most involved dissents, etc.

The 9-0 we all agree cases tend to be early in the term.

Arles

06-06-2005, 09:56 AM

I'll throw in my 2 cents as well.

McCreary County, Ky. v. American Civil Liberties Union of Kentucky; Van Orden v. Perry - Do displays of the Ten Commandments in two Kentucky courthouses and on a monument at the Texas Capitol amount to impermissible government promotion of religion?

My view: The Kentucky ones were put up in 1999 and as a promotion of religion - they should probably be taken down. The Van Orden v. Perry is a Texas monument that's been there since 1961. Because of its age, I'd say it is more historical in nature and therefore allowed to stay.
I agree on the Texas one, but I will be interested to hear what the court thinks about the ten commandments case. IMO, the ten commandments also have a great deal of historical value for our judicial system as many of the laws created in the country's inception were based loosely on them (and often referenced by the founders). There are certain religious relics that I would be in favor of removing, but I don't the see Ten Commandments as being in that group given their historical significance to the founding of our policies and laws.
Gonzales v. Raich - Does U.S. anti-drug law override state laws that allow the medical use of marijuana to relieve a patient's pain?

My view: It's grown, sold, bought and used within the State of California. I don't see where the Federal Government has any right to enforce their laws on this issue. It's clearly not interstate commerce.
I'm more interested in the federal issue on this as well - it may be an issue of a state law potentially violating a federal one. As to the medical marijuana issue, I think it is a bit of a slippery slope but if it can be proven to have medicinal benefits, I wouldn't be too upset to see it allowed in states that approve the measure - provided it's distribution doesn't violate any federal laws.
Kelo v. City of New London, Conn. - May a city use its eminent domain power to condemn private property that is not in a blighted area and that would be turned over to private economic development?

My view: This is an issue that really strikes a nerve. I believe eminent domain should be curtailed. This kind of use is garbage - it's a simple taking from the poor and giving it to the rich. Often done under the pretense that the City/County will get more taxes in the long run, it's the taxpayers that foot the bill if things don't plan out.
This is one area where states tend to trample the rights of citizens. Farrah and I have seen situations where a state will condemn or redistrict land near private property it wishes to purchase in hopes of driving the value down, then swooping in to buy up the private property once that happens. My knee-jerk on this is that I hope the private citizen wins, but I don't know as much about the case to see whether or not the gov't of Conn acted appropriately.

Metro-Goldwyn-Mayer Studios v. Grokster - Can Internet file-sharing services be held liable under U.S. copyright law for users who illegally download music and movies?

My view: No. Grokster hasn't done anything wrong and it's not their job to enforce the law. All they are doing is providing a service to allow users to share files - what is shared is never stored nor touched by Grokster - and they shouldn't have to control the shared files. The software and business implications of this could be devestating. It opens up/expands a whole new area of product liability. I really hope that Metro-Goldwyn loses big-time.
I think this is an interesting case. Grokster is allowing the method for which users can share copyrighted material without a license. Their sole intent seems to be allowing users to violate copyrights and I would think there would be some guidelines needed for this type of action. That said, I am not 100% sure on the legal liabilities but I know if my software was being shared across millions of computers without me making a dime I'd be pretty peeved.

Town of Castle Rock, Colo. v. Gonzales - Is an individual's right to due process violated if a police department fails to enforce a judge's protection order without meaningful consideration or explanation? The case involves a woman whose three daughters were killed by her husband.

My view: Interesting and sad case. The short of it is that her 3 daughters were killed by her ex-husband when she had a restraining order against him. The police didn't enforce the order at all, so now she's suing them. It sounds like in this particular instance, the police were extremely negligent. But you also don't want a flood of lawsuits. I'd like to see a *very* tailored verdict that could only apply to this case.
Agree here.

Spector v. Norwegian Cruise Line - Does the Americans with Disabilities Act, a 1990 law that protects the disabled from discrimination in public places and transportation, cover cruise ships that operate under foreign flags but stop in U.S. waters?

My view: I would hope not. I like the intent of ADA, but the execution has been horrid. I was working in the pay telephone industry at the time it was passed and it cost us hundreds of thousands of dollars to have to go back and retrofit payphones for ADA compliance. Again, I agree with the intent of the law but the actually execution was extremely poor. I don't want to see bad USA laws now applied to foreign companies. If it's that much of an issue, get Congress to specifically target cruise ships to provide access.
Agreed as well. The ADA has become a major thorn for small businesses as well so anything that cuts into its jurisdiction is a good move from my standpoint. I can see its need in certain larger buildings/complexes, but it is being expanded beyond the intended scope when it was drafted (IMO).

Farrah Whitworth-Rahn

06-06-2005, 09:58 AM

st.cronin

06-06-2005, 10:00 AM

My own views:

I say the 10 Commandments stay (and I think the court will agree)
I say let the Californians smoke their weed (and I think the court will agree)
I have no real opinion on eminent domain
I don't know anything about Grokster but stealing music is illegal and wrong and should be punished - there is no such thing as a free lunch
I don't think people should be suing police departments ... if there were bias I could see it, but negligence/incompetence ... ehhhh
I think ADA should not apply in those cases, but I suspect the court will disagree

Cringer

06-06-2005, 10:07 AM

Agreed as well. The ADA has become a major thorn for small businesses as well so anything that cuts into its jurisdiction is a good move from my standpoint. I can see its need in certain larger buildings/complexes, but it is being expanded beyond the intended scope when it was drafted (IMO).

I find it funny because you are starting to see handi-cap parking spaces at truck stops and rest area/toll road plazas. Actually have been seeing them for a while now. I want to know who pushed for this, ADA fanatics? I want to know what disablity you can have that would qualify you for a placard but allow you to keep your CDL?

I have never seen a truck with handi-cap plates or a placard. Many times guys will avoid these spots to avoid tickets, which sucks because it is hard enough to find a place to park.

Blackadar

06-06-2005, 10:12 AM

I'll throw in my 2 cents as well.

I think this is an interesting case. Grokster is allowing the method for which users can share copyrighted material without a license. Their sole intent seems to be allowing users to violate copyrights and I would think there would be some guidelines needed for this type of action. That said, I am not 100% sure on the legal liabilities but I know if my software was being shared across millions of computers without me making a dime I'd be pretty peeved.

Amazing how much we agree, isn't it? Just one correction - Grokster's sole intent isn't allowing users to violate copyrights. It's providing a file sharing service - interestingly enough, that sharing is what the Internet was originally designed for. (hxxp://www.isoc.org/internet/history/brief.shtml) Now while the majority of Grokster's use may be for illegal file sharing - but it does have legitimate uses. If MGM wins, ANY file-sharing networks would be liable for this traffic - and shut down the legitimate uses as well. I'm also concerned about the larger ramifications - if I create a modable FPS and someone creates a Star Wars mod using that software, can George Lucas sue me?

BrianD

06-06-2005, 10:21 AM

Grokster is a tool, and like any tool, it can be used for good or bad purposes. If Grokster is liable for its users sharing copyrighted material, then gun makers should be liable for their users shooting other people. Don't blame the tool.

henry296

06-06-2005, 10:25 AM

I am not familiar with Grokster. Can you give me some examples of users sharing files for good purposes with Grokster's software?

Bearcat729

06-06-2005, 10:26 AM

http://www.bloomberg.com/apps/news?pid=10000087&sid=aJCn_6bfaKWk&refer=top_world_news

U.S. Supreme Court Rules Against Use of Medical Marijuana

June 6 (Bloomberg) -- The U.S. Supreme Court dealt a setback to the medical marijuana movement, ruling that federal narcotics laws make it a crime to grow and use the drug even when it never crosses state lines and is used only to relieve pain or nausea.

The justices today said Congress's power over interstate commerce is broad enough to let it ban locally grown and used medical marijuana. The 6-3 ruling, issued in Washington, overturns a lower court decision that had let two California women use cannabis to treat pain, nausea and other symptoms.

California and nine other states exempt seriously ill people from laws banning cultivation and use of marijuana. Today's ruling means people in those states nonetheless will face the risk of federal prosecution if they use or distribute marijuana.

The case is Ashcroft v. Raich, 03-1454.

To contact the reporter on this story:
Greg Stohr in Washington at [email protected].

John Galt

06-06-2005, 10:29 AM

A few of these opinions were handed down today. The most interesting to me was the marijuana case (6 to 3 for the feds).

As for those of you confused by JoninMiddleGA, I have no doubt that Jon is an "authoritarian" in his political beliefs. He believes liberals are evil and should be permanently marginalized, he believes in absolutes on almost every political question, and he supports any means (including "illegal" ones) to accomplish those absolutes. States rights are convenient only when they support the "right" outcome.

Blackadar

06-06-2005, 10:30 AM

I am not familiar with Grokster. Can you give me some examples of users sharing files for good purposes with Grokster's software?

I haven't used Grokster itself. But WoW uses a Bittorrent-like system to distribute patches. And I've used Bittorrent to get those patches myself when the Blizzard system is slow. I've used Bittorrent to share my son's baby pictures with my sister in Florida. I've shared non-copywrited stories and music via Kazaa (when I used Kazaa). I've also used Kazaa for mods for games, though I don't often download files due to viruses.

BrianD

06-06-2005, 10:31 AM

I am not familiar with Grokster. Can you give me some examples of users sharing files for good purposes with Grokster's software?

It is the same with any of these programs (Grokster, Napster, Kazaa). Lots of unknown artists make their music, books, and movies available for sharing in hopes of getting their name out or being discovered.

BrianD

06-06-2005, 10:33 AM

I haven't used Grokster itself. But WoW uses a Bittorrent-like system to distribute patches. And I've used Bittorrent to get those patches myself when the Blizzard system is slow. I've used Bittorrent to share my son's baby pictures with my sister in Florida. I've shared non-copywrited stories and music via Kazaa (when I used Kazaa). I've also used Kazaa for mods for games, though I don't often download files due to viruses.

Red vs. Blue episodes were generally made available by the creators through Bittorrent as well. If you want to get something out to a lot of people but don't have the bandwidth to do it yourself, this is a good way to go.

Arles

06-06-2005, 10:34 AM

Blackadar

06-06-2005, 10:37 AM

Arles

06-06-2005, 10:49 AM

It's a tough case. I found this:
Justice John Paul Stevens (search), writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana.
I'm guessing there is some aspect of the case that triggers the federal law. But, given the California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines, I don't really know what that aspect is at first glance.

Arles

06-06-2005, 10:53 AM

Don't like this one bit:

Court Expands Scope of Disabilities Law

By HOPE YEN
The Associated Press
Monday, June 6, 2005; 11:12 AM

WASHINGTON -- The Supreme Court, expanding the scope of a landmark federal disabilities law, ruled Monday that foreign cruise lines sailing in U.S. waters must provide better access for passengers in wheelchairs.

The narrow 5-4 decision is a victory for disabled rights advocates, who said inadequate ship facilities inhibited their right to "participate fully in society."

Congress intended the 1990 American with Disabilities Act to apply to cruise lines, justices said.

"The statute is applicable to foreign ships in the United States waters to the same extent that it is applicable to American ships in those waters," Justice Anthony Kennedy wrote for the majority. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Still, the ruling is unclear how much the $2.5 billion foreign cruise industry, with two-thirds of its passengers Americans, will actually have to reconfigure pools, restaurants and emergency equipment for wheelchair accessibility, an upgrade that could cost the industry millions.

That's because Kennedy also writes that cruise lines need not comply with Title III of the ADA to the extent it creates too much international discord or disruption of a ship's internal affairs, under a provision of the statute that calls only for "readily achievable" modifications.

"It is likely that under a proper interpretation of 'readily achievable' Title III would impose no requirements that interfere with the internal affairs of foreign-flag cruise ships," Kennedy wrote, in sending the case back to lower court to determine what is required of cruise lines.

Three disabled passengers, who boarded Norwegian Cruise Line in Houston in 1998 and 1999, say they paid premiums for handicapped-accessible cabins and the assistance of crew but the cruise line failed to configure restaurants, elevators and other facilities in violation of the ADA.

Norwegian Cruise Line countered that only an explicit statement of Congress can justify imposing the U.S. law on a ship that sails under a foreign flag, even if it is docked at a U.S. port. The federal law is silent as to whether foreign cruise lines are covered by the ADA.

In a dissent, Justice Antonin Scalia argued that extending the federal law to foreign ships will create international discord and is wrong because Congress does not explicitly call for it. The ruling should leave no opening for ships to be required to change their amenities to fit the laws of each country they visit, he said.

Much of the industry registers its ships away from home countries in places such as the Bahamas, Liberia, Honduras, Panama and Cyprus, which promote the practice by pointing to their business-friendly regulatory outlooks. The U.S. cruise industry is almost exclusively foreign-flagged.

"Title III plainly affects the internal order of foreign-flag cruise ships, subjecting them to the possibility of conflicting international obligations," Scalia wrote in an opinion joined by Chief Justice William H. Rehnquist as well as Justices Sandra Day O'Connor and Clarence Thomas.

The ruling has wide implications for the cruise industry, which fears the remodeling will cost it millions. The Bush administration and several state attorneys general backed the disabled passengers while the International Council of Cruise Lines supported Norwegian Cruise Line.

The case was an appeal from the 5th U.S. Circuit Court of Appeals based in New Orleans, which ruled in January that foreign-flag cruise ships are not covered by the ADA. Under the Supreme Court's decision, the disabled passengers which filed suit may now proceed to trial to prove they were discriminated.

Both the cruise lines and disability groups then urged the Supreme Court to take the case, noting a conflict with an 11th U.S. Circuit Court of Appeals ruling in 2000 that foreign ships must comply with the law.

After the 11th Circuit decision, several cruise lines settled lawsuits claiming ADA violations, while some voluntarily agreed to make their facilities more wheelchair-accessible.

The case is Spector v. Norwegian Cruise Line, 03-1388.
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/06/AR2005060600578_pf.html

albionmoonlight

06-06-2005, 10:55 AM

I have not read the case yet, but not suprisingly, it relies heavily on Wickard v. Filburn, 317 U.S. 111 (1942). Filburn held that a farmer could be punished for violating wheat quotas through growing too much wheat. The farmer in that case grew the wheat and consumed all of it himself. The Court held that this activity still affected interstate commerce because by growing his own wheat, the farmer ending up having to buy less wheat on the market--affecting supply and demand.

Agree or disagree with Filburn, but it is easy to see how this case follows it.

digamma

06-06-2005, 10:57 AM

The medicinal marijuana case represents a rare occasion when Thomas and Scalia have not been on the same side of a decision.

Farrah Whitworth-Rahn

06-06-2005, 11:05 AM

Haven't read the marijuana decision yet, but did a patient's right to privacy, and doctor/patient confidentiality factor in to their decision at all?

MrBigglesworth

06-06-2005, 11:29 AM

10 Commandments themselves have significant historical import, being the basis for laws in numerous nation states...
What nation states are those?

Crapshoot

06-06-2005, 12:13 PM

Interesting topic Blackadar: My 2 cents.

Mcreary - clear violation of church/state - fundemental concept, and state's rights don't take precedence.

Gonzales vs Raich: Personal opinion ? Totally in favor of it - especially if it has medical values, and I believe the government should treat marijuana like cigaretts. On a legal level though , states laws contradicting federal laws set up some conundrums.

Kelo v New London: Torn - on the one hand, eminent domain seems unfair, and a gross disregard of property rights- on the other hand, there is an arguement for the neccessity of development. Overall, I'd go against it- or set the burden fairly high.

MGM v Grokster: Its the VCR arguement again, and its a technophobe, luddite-like view. A technology that can be used for illegal things does not expressly make the technology illegal. Else, lets apply the arguement to guns.

Castle Rock v Gonzales:
I'm inclined to agree with group consensus here- there are limits on what any department can do, though this case seems particularly egrarious.

Spector v Norwegian Cruise Line:
The intent is decent (all parties must operate under the same law) - but the action itself is flawed. If your beef is with the ADA, then the ADA should be reformed (which is where must of us seem to come from)- but it doesnt mean that one company should be subject to different rules.

On a side note, as much as I disagree with Jon, he's not a textbook conservative, and its hard to label him as such.

Crapshoot

06-06-2005, 12:16 PM

dola, just saw the judgements. I agree with the ADA case (on a basis of law, not on the ADA itself), but the medical marijuana case was awful. From what albionmoonlight cited though, it does tend to follow - but only if marijuana is part of commerce, which it is not. The arguement of the farmer producing too much essentialy argues that he took himself out of the demand equation, and perverse as farm laws are, it makes sense on that basis.

judicial clerk

06-06-2005, 12:17 PM

Gonzales v. Raich - Does U.S. anti-drug law override state laws that allow the medical use of marijuana to relieve a patient's pain?

My view: It's grown, sold, bought and used within the State of California. I don't see where the Federal Government has any right to enforce their laws on this issue. It's clearly not interstate commerce.
until recently, Everything effected interstate commerce. My dog farting could be regulated by the fed law b/c it effected interstate commerce.

The medicinal marijuana case represents a rare occasion when Thomas and Scalia have not been on the same side of a decision.
interesting.

HomerJSimpson

06-06-2005, 12:35 PM

I'm so glad we are under the rule of Republican dictat...I mean, elected officials, which means we'll have smaller goverment and more freedoms. What? The goverment has become larger, more intrusive and restrictive under Republican rule? No! That couldn't be! Rush said it would be smaller! I've been tricked!

larrymcg421

06-06-2005, 12:42 PM

Thomas and Scalia were not on the same side (for the most part) of the ADA case. Thomas only joined the first part of Scalia's dissent and sided with majority on most of the rest.

As for the marijuana case, it should be noted that Scalia concurred in the judgement but did not join the majority opinion. It was also interesting to see that it was Stevens, Ginsburg, Breyer, and Souter siding with the government and Thomas, Rehnquist, and O'Connor siding with California. It fits there theories of law to be sure but the specifics of the case makes it interesting which side they ruled on. Mayba Scalia concurred with the majority judgment because he likes to smoke weed? I could see that.

sterlingice

06-06-2005, 01:03 PM

It is the same with any of these programs (Grokster, Napster, Kazaa). Lots of unknown artists make their music, books, and movies available for sharing in hopes of getting their name out or being discovered.
And the other 99.99% is porn, bootlegged movies, and illegal mp3s

SI

JonInMiddleGA

06-06-2005, 01:06 PM

Briefly, to answer a couple of questions asked in my direction earlier.

"States Rights" were murdered a long time ago. Nice theory, but one that died before I was ever born. Now it's just something that gets exhumed in order to be killed anew occasionally. With that in mind, I'd rather see the feds get it right than the state's get it wrong (whatever "it" we might be talking about, not just the one in play originally in this thread).

IIRC, the other question mentioned something about "personal responsbility" & how it reconciles with my usually authoritarian positions. That one is really easy to get, if I can word it properly while typing ... basically, the rule of "personal responsbility" is an ideal, but given the sad & sorry state of many elements of society, it cannot be trusted as the only limitation. And in cases where it fails or is on the brink of failure, then the rule of law must intervene.

(I fear I may have created more questions than I've answered, especially on the latter item, but at least I took a shot at explaining it).

JonInMiddleGA

06-06-2005, 01:06 PM

And the other 99.99% is porn, bootlegged movies, and illegal mp3s

Bingo.

BrianD

06-06-2005, 01:06 PM

And the other 99.99% is porn, bootlegged movies, and illegal mp3s

SI

Which really doesn't matter since I was asked to name a legitimate current use...and I did.

sterlingice

06-06-2005, 01:09 PM

Which really doesn't matter since I was asked to name a legitimate current use...and I did.
I can use a bomb (I'm thinking like the giant one in Goldfinger) as a table but that doesn't make it any less illegal.

SI

BrianD

06-06-2005, 01:20 PM

I can use a bomb (I'm thinking like the giant one in Goldfinger) as a table but that doesn't make it any less illegal.

SI

That really depends on your legal history, and compliance with proper marking, storage, and licensing restrtictions.

Do you really want to make things illegal just because of the way people use them? Should we outlaw CD/DVD burners, VCR/cassette tapes, scanners and computers because they are often used to reproduce copyrighted books, movies, and music?

sterlingice

06-06-2005, 01:24 PM

That really depends on your legal history, and compliance with proper marking, storage, and licensing restrtictions.

Do you really want to make things illegal just because of the way people use them? Should we outlaw CD/DVD burners, VCR/cassette tapes, scanners and computers because they are often used to reproduce copyrighted books, movies, and music?
I think when the primary purpose, that which it is used for a majority of the time, of an item is illegal, yes. People using a VCR for personal use is not illegal and it's the primary purpose. People using a gun for hunting rather than shooting people is the primary use. The *overwhelming* majority of stuff traded on file serving networks is illegal.

SI

gstelmack

06-06-2005, 01:25 PM

That really depends on your legal history, and compliance with proper marking, storage, and licensing restrtictions.

Do you really want to make things illegal just because of the way people use them? Should we outlaw CD/DVD burners, VCR/cassette tapes, scanners and computers because they are often used to reproduce copyrighted books, movies, and music?
Or my favorite, do we ban cars because sometimes people run them through a crowd or through the front of a building? How about vans and small trucks, since they are sometimes used to transport bombs, drugs, or any number of illegal things?

sterlingice

06-06-2005, 01:28 PM

Or my favorite, do we ban cars because sometimes people run them through a crowd or through the front of a building? How about vans and small trucks, since they are sometimes used to transport bombs, drugs, or any number of illegal things?
See above. Cars are not primarily used to run over people nor trucks to transport bombs. But don't let me get in the way of your straw man or whatever it's called when you come up with something so radically different than what I was saying and easily refute it.

SI

BrianD

06-06-2005, 01:30 PM

I think when the primary purpose, that which it is used for a majority of the time, of an item is illegal, yes. People using a VCR for personal use is not illegal and it's the primary purpose. People using a gun for hunting rather than shooting people is the primary use. The *overwhelming* majority of stuff traded on file serving networks is illegal.

SI

Do you really think more than 50% of all burned DVDs contain legally reproduced material?

HomerJSimpson

06-06-2005, 01:31 PM

Do you really think more than 50% of all burned DVDs contain legally reproduced material?

Yup. At least the ones for home use. Mass production devices might be a different story.

JonInMiddleGA

06-06-2005, 01:33 PM

I can use a bomb (I'm thinking like the giant one in Goldfinger) as a table but that doesn't make it any less illegal.

Basically along the same lines that make "possession of burglar's tools" a crime in some states.

gstelmack

06-06-2005, 01:35 PM

See above. Cars are not primarily used to run over people nor trucks to transport bombs. But don't let me get in the way of your straw man or whatever it's called when you come up with something so radically different than what I was saying and easily refute it.

SI
And where are you getting your numbers on what percentage of the filesharing networks is used for illegal stuff? Anyone can throw around statistics.

And just because pirates have taken over those networks does not change the fact that they have a VERY legitimate purpose. Trucks can transport legal vs. illegal materials just as easily as a filesharing network can transport legal vs. illegal files.

All of this is coming from someone who personally believes that all those pirates illegally sharing music and videos should be held accountable and punished. But that doesn't mean the software they use should be made illegal.

Although I could see a case being made for forcing these companies to at least perform spot checks to remove illegal materials, the same way we have weigh stations for trucks, customs at the borders, and make E-bay and other auction sites pull down stuff that shouldn't be up there.

Coffee Warlord

06-06-2005, 01:37 PM

See above. Cars are not primarily used to run over people nor trucks to transport bombs. But don't let me get in the way of your straw man or whatever it's called when you come up with something so radically different than what I was saying and easily refute it.

Here's the problem I have. Where do we draw the line? Who decides where we draw the line? What is a 'bad' use and what is a 'good' use? (Case in point in the last question: I argue that breaking DVD encryption to make a copy of a DVD for your personal use is acceptable. Recent laws have deemed it not.)

Outlawing things because they can be used for good/bad/ugly is asinine. ANYTHING can be put to an illegal/dangerous purpose. If there's a legitimate purpose for a tool, it should be legal, end of story. No, I don't consider a 500 pound bomb to have any legitmate purpose other than for blowing shit up.

Considering all these file sharing systems are leading/have lead to some better applications (BitTorrent anyone?), and DO in fact have legitimate purpose, outlawing them is absolutely a Bad Idea.

I hope this made sense. I'm digesting Culver's. :)

Crapshoot

06-06-2005, 01:43 PM

I can use a bomb (I'm thinking like the giant one in Goldfinger) as a table but that doesn't make it any less illegal.

SI

Actually, you can damn well have dynamite for construction purposes and demolition - so out that goes. Try again. Banning technology is a classic case of trying to close the barn door after the cow has escaped.

Blackadar

06-06-2005, 01:44 PM

And the other 99.99% is porn, bootlegged movies, and illegal mp3s

SI

Porn is not illegal, so it does not fall into the category of bootlegged movies or illegal MP3s, which are illegal copyright violations. Copyrighted porn movies would fall into the category of bootlegged movies. At one point, I would bet that more than 50% of all floppy disks were used illegally. They weren't banned. I would bet that 50% or more of all off-the-shelf blank DVD and CD-ROM sales are for illegal purposes. They're not banned either.

Blackadar

06-06-2005, 01:48 PM

And real statistics are helpful. This is an interesting article/study/thesis:

hxx://www.firstmonday.org/issues/issue10_4/geist/

(excerpt)
Although the music industry seems loath to discuss the matter publicly, according to an October 2004 Economist article, an internal music label study found that between 2/3 and 3/4 of recent sales declines had nothing to do with Internet music downloads [8]. That finding was echoed in a Ministry of Canadian Heritage commissioned report which concluded that

"[t]he assumption by the recording industry that demand for CDs is fundamentally strong and that Internet piracy is to blame for falling sales is a simplistic reaction to a complex problem ... to place the burden wholly or partly on illegal downloads from the Internet is to ignore a host of other reasons." [9]
The "other reasons" include the growth of DVD sales, which accounted for zero revenue in 1999, but generated over C$170 million in new revenue from 2000–2004 [10]. The popularity of DVDs is surely related to the decline in CD sales and the shrinking shelf space allocated to CDs by music retailers.

Moreover, U.S. census data actually indicates that the number of hours people spend listening to music is declining. Its data suggests that people now spend increasing amounts of time talking on cellphones, playing videogames, watching movies and using the Internet [11].

The shift in music retail merchandising and marketing has also had an enormous impact on CD sales. The Recording Industry Association of America, CRIA’s U.S. counterpart, reports that the dominant retail chains are now big–box retailers such as Wal–Mart. In Canada, Wal–Mart and Costco now account for 25 percent of the music retail marketplace, while in the U.S., Wal–Mart, Target and BestBuy are responsible for over half of all CDs sold [12].

This shift affects the music industry in two ways. First, while traditional record stores carry 60,000 or more titles, Wal–Mart stores focus primarily on new releases, featuring an average of 5,000 titles [13]. The decreasing availability of older titles hurts an industry that has traditionally depended upon catalogue sales for about 40 percent of its retail music revenue [14].

Second, Wal–Mart has placed new pressures on the retail pricing of CDs — capping retail pricing in the United States at US$9.72 per CD. The pricing pressure has had a dramatic impact on the revenue generated from each CD sale. According to CRIA’s own numbers, revenue from prices of an average CD in 2004 was C$10.95, down 8.8 percent from C$12.00 per CD in 1999. The bottom line impact has been to shave C$53.9 million in revenue for sales in 2004 when compared with the same unit sales in 1999.

Additional factors behind the decreased revenues include a significant decline in the number of new releases issued over the past six years (less product presumably results in fewer sales) [15] and the view that the CD sales decline simply reflects broader economic conditions. For example, during the 1991 economic recession, CD sales growth in the United States dropped by 11 percent, a sharper drop than the most recent downturn [16].

In fact, perhaps the best evidence yet of the tenuous link between file–sharing and music sales comes from the music industry’s performance following the March 2004 Federal Court of Canada’s file–sharing decision which denied CRIA’s demand to disclose the identities of 29 alleged file sharers [17]. Despite the dire predictions that the decision would decimate music sales, the six–month period following the decision saw CD unit sales jump by 12.4 percent in Canada over the prior year [18].

sterlingice

06-06-2005, 01:54 PM

And real statistics are helpful. This is an interesting article/study/thesis:
Even more impressive would be statistics about file sharing not music sales. But that would be almost impossible to find since each side will greatly skew their results.

But, take, say, a random sampling of songs played on a radio station or three in an hour or a day or whatever. Go look up how many instances of each song are out there on eMule or Grokster or your network of choice. Then go see how many were released by the band as free mp3s and how many were not.

For software, there are tons of legal linux distributions out there on BT. But back when Suprnova or the other large torrent sites were up and operating, the ratio of illegal:legal software was at least 5:1 and that's being extrememly generous. Maybe it's different now- that I don't know. But I doubt it.

SI

henry296

06-06-2005, 01:58 PM

IMO, the file sharing programs are an accomplice to the copyright violators. Just because you don't pull the trigger doesn't mean you can't be prosecuted for murder.

Blackadar

06-06-2005, 01:59 PM

Even more impressive would be statistics about file sharing not music sales.

SI

Can you properly evaluate one without the other? If the claim is that copyright infringment is so horrible to warrant the elimination of software that can be used to commit copyright infringement (but is not the sole purpose of that software), and the majority of that infringement is music, isn't it then prudent and relevant to examine the true effect upon those sales?

Coffee Warlord

06-06-2005, 01:59 PM

IMO, the file sharing programs are an accomplice to the copyright violators. Just because you don't pull the trigger doesn't mean you can't be prosecuted for murder.

So by your view, whoever makes a firearm is an accomplice to any crime committed with that firearm?

panerd

06-06-2005, 02:00 PM

ISiddiqui

06-06-2005, 02:00 PM

Bad decision by the Supremes on the pot. I don't see how homegrown, local pot that is distributed for free (no legal tender) and without crossing state lines can in any way be considered interstate commerce. And given that the Federal Law and the CA Law were in direct conflict and that this isn't a direct Bill of Rights or Constitutional conflict (from an individual's rights level) I don't see how or why the Federal Law would take precedence over State law here.

I.e.:

1. No interstate commerce clause should apply
2. No individual rights were being infringed by the State

So why does Federal law override State law? It's not like Prohibition since it's not an Amendment to the Constitution.
It has been settled Supreme Court precedent since 1937 (IIRC) with Wickard v. Filburn (which has never been overruled) that any commerical activity has impact on interstate commerce, mostly because of its effects on supply and demand and thus prices, even if it wasn't crossing state lines, or even if in some cases it was being given for free (those people would have had to purchase it otherwise). It is irrelevant that the federal law bans the drug and thus people wouldn't be able to purchase it anyway in other states, it still has an economic effect, and that won't be changed any time soon, so best to live with it.

It wasn't an Supremacy Clause issue, it was a Commerce Clause issue.

JonInMiddleGA

06-06-2005, 02:03 PM

... isn't it then prudent and relevant to examine the true effect upon those sales?

Not really, since the issue (to me) has nothing to do with the impact on music sales but rather with the theft by taking of copyrighted materials.

sterlingice

06-06-2005, 02:05 PM

Can you properly evaluate one without the other? If the claim is that copyright infringment is so horrible to warrant the elimination of software that can be used to commit copyright infringement (but is not the sole purpose of that software), and the majority of that infringement is music, isn't it then prudent and relevant to examine the true effect upon those sales?
Just because I steal a pack of gum from WalMart which won't affect their bottom line at all doesn't make it any less of a crime or any less wrong. Stealing from a less popular band won't put nearly the dent into the CD bottom line as stealing from a more popular one, but it's just as wrong and illegal. Some would even argue that you're stealing from the band who needs it more and are thus even more wrong.

SI

MrBigglesworth

06-06-2005, 02:06 PM

Blackadar

06-06-2005, 02:06 PM

To paraphrase those in favor of Grokster. "We like to illegally copy music and files therefore we will talk about all of the proper uses of file sharing of which none of us use this for."

I used to use Napster and defended it much like these guys. Then I grew up and realized I was stealing from somebody and decided to stop acting like such a imbecile. You mean shoplifting from Walmart might actually effect more than the Walton family and stealing Pink Floyd might actually effect more than capital records? Well, I am selfish so I am going to go on some tangent about the gun industry or cars and not admit why companies like Napster really exist.

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.

sterlingice

06-06-2005, 02:09 PM

Actually, you can damn well have dynamite for construction purposes and demolition - so out that goes. Try again. Banning technology is a classic case of trying to close the barn door after the cow has escaped.
Except this is a completely unrelated jab as I wasn't talking about banning a specific bomb substance being banned. Rather that because an illegal item (bomb) can be used for a legal purpose (table), doesn't make it illegal to use. Dynamite can be used for legal purposes and illegal purposes and has been regulated as such. There is no such regulation on file sharing. You try again.

SI

-Mojo Jojo-

06-06-2005, 02:10 PM

Amazing how much we agree, isn't it? Just one correction - Grokster's sole intent isn't allowing users to violate copyrights. It's providing a file sharing service - interestingly enough, that sharing is what the Internet was originally designed for. (hxxp://www.isoc.org/internet/history/brief.shtml) Now while the majority of Grokster's use may be for illegal file sharing - but it does have legitimate uses. If MGM wins, ANY file-sharing networks would be liable for this traffic - and shut down the legitimate uses as well. I'm also concerned about the larger ramifications - if I create a modable FPS and someone creates a Star Wars mod using that software, can George Lucas sue me?

My feeling is that the Court is going to nail Grokster one way or another, it's just a question of how much collateral damage they do by way of their reasoning.

The question is a bit narrower, I think, than your arguments above. Napster has already established that a p2p file-sharing program can be held liable for contributory infringement. A key distinction betweek the Grokster case and Napster is that the Napster software ran through a central server that allowed the company to monitor transactions, cancel downloads, ban users, etc. Napster had the technical ability to police copyright violations occurring over their system and failed to do so, despite specific notice from the copyright owners of violations and got burned for it.

Grokster uses a supernode structure, which means they could shut down all their computers and clean out their offices and it would have no impact on Grokster users. They don't have the same sort of control that Napster did. The 9th Circuit agreed that Grokster had substantial noninfringing uses and that they had no ability to control the use of their software, which going back to the Sony betamax case provides them with a defense against contributory infringement. MPAA is challenging on the substantial noninfringing use, but I tend to think the Court will rule for Grokster there.

A more problematic issue is the 7th Circuit's Aimster decision. Like Grokster, Aimster was implemented in such a fashion that the developer could not police copyright violations. There, however, the court ruled that the designer, knowing that the primary use of the software would be copyright infringements, intentionally designed the software to conceal what was going on; that the company had willfully blinded itself to the infringement. The 7th Circuit held that willful blindness was not a valid defense against contributory infringement and ruled against Aimster.

Aimster predates Grokster, but the 9th Circuit really gave no consideration to willful blindness when they ruled in Grokster's favor. What I think may happen here (and given all the options, what I think should happen) is that the Supreme Court adopts the 7th Circuit's willful blindness approach and finds against Grokster (or remands to the 9th). Alternatively they may find that the noninfringing use is not substantial enough, or (worst case scenario) overturn
Sony. I just really don't see them allowing Grokster to walk away from this unscathed.

panerd

06-06-2005, 02:11 PM

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.

sterlingice

06-06-2005, 02:12 PM

Outlawing things because they can be used for good/bad/ugly is asinine. ANYTHING can be put to an illegal/dangerous purpose. If there's a legitimate purpose for a tool, it should be legal, end of story. No, I don't consider a 500 pound bomb to have any legitmate purpose other than for blowing shit up.

Considering all these file sharing systems are leading/have lead to some better applications (BitTorrent anyone?), and DO in fact have legitimate purpose, outlawing them is absolutely a Bad Idea.
But that's why I set up a test of "majority used" rather than just a blanket "bad/good" scenario. I can kill someone with any number of things in my room- bean bag chair, desk, computer monitor, chopsticks, shotglasses, AOL cd, etc, much as I'm thinking I might want to do when I'm done with this thread ;) But that doesn't mean they should be illegal. The line I drew involved the intent and use of the technology.

SI

sterlingice

06-06-2005, 02:13 PM

Do you really think more than 50% of all burned DVDs contain legally reproduced material?
No, but I bet 50% of people who use DVD burners use them for legal use. I suppose one could argue over whether the percentage of material or percentage of users is a proper benchmark. Again, we don't have good statistics, but I bet if we set up the most rigid test of these: % of users on file network and % of bandwidth used (or CDs burned or whatever) and still 50% of both tests would be passed.

SI

Blackadar

06-06-2005, 02:14 PM

You guys are missing the point of intellectual property laws. The laws are not in place to protect the profits of companies. The laws are in effect to protect the variety of media available to the consumer. There is absolutely ZERO evidence that less music is being made because of file-sharing. There are people out there that would create music for free, just like people write their opinions in blogs for free.

The government's job is not to protect failing business models.

Bingo. Again, the case ultimately centers around Fair Use vs. Copyright protection. To scrap Fair Use, I think it's incumbent upon the industry to not only show that something like Grokster or Bittorrent is being used illegally, but that it has a such a devastating impact upon the industry so as to outweigh the legitimate uses of file-sharing programs and existing Fair Use doctrine.

Remember, in the Supreme Court's landmark decision in Sony Corporation of America v. Universal City Studios, Inc. (a.k.a. the "Sony Betamax ruling") held that a distributor cannot be held liable for users' infringement so long as the tool is capable of substantial noninfringing uses.

MrBigglesworth

06-06-2005, 02:16 PM

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.
That is a completely ignorant view of the potential benefits of P2P filesharing.

And also, are you similarly against iPods? They carry as much illegal content as P2P networks.

sterlingice

06-06-2005, 02:17 PM

If you're going to troll, get the hell out of this thread. I don't illegally copy music and I bet I have more CDs than 90% of the posters here (and therefore spent far more on music than most here). I own every single Pink Floyd album/CD too. So while some of us may be in favor of file-sharing, it doesn't mean we're illegally copying music/DVDs or anything else and I resent the implication that since I'm in favor of Grokster, I must be a pirate. Bite me.

As for Napster...it's not only legal, but supported by the music industry.
C'mon, blackadar- you knew what he meant about Napster and were just taking a cheap shot. "used Napster" = back before it was broken up and was ruled illegal as compared to now when it's settled its copyright disputes with the music industry.

SI

Blackadar

06-06-2005, 02:20 PM

Calling a spade a spade is trolling? Grokster's only purpose is as the lastest end around to pirate music. Same with Napster a few years ago. To defend it unfortunatly puts you with the pirates.

You're not calling a spade a spade. You're saying that anyone who defends things like Fair Use is a pirate. It's insulting to those of us who understand intellectual property laws, Fair Use and even product liability ramifications.
If you don't see the difference, then your opinion is so uninformed as to not understand the issue at all and is therefore worthless. It's like defending the rights of Nazis to march - I may not like their message, but they do have the right to do and THAT'S what I support.

As Biggs said, most of the music on IPods is illegal. You want to ban those next? How about the MP3 format entirely? Since the majority of the use is illegal files, let's ban the MP3 file format. Get the picture yet?

Blackadar

06-06-2005, 02:23 PM

C'mon, blackadar- you knew what he meant about Napster and were just taking a cheap shot. "used Napster" = back before it was broken up and was ruled illegal as compared to now when it's settled its copyright disputes with the music industry.

SI

Believe it or not, I supported the Napster decision. The reason? Because Napster was hosting the illegal files. Therefore, they are the distributor of copyright protected information/music/movies. That's blatently illegal and Napster deserved to get bitch-slapped.

Grokster is nothing more than a conduit. They don't host any illegal files. More than 50% of email is illegal SPAM. Should we ban Outlook Express?

panerd

06-06-2005, 02:25 PM

You're not calling a spade a spade. You're saying that anyone who defends things like Fair Use is a pirate. If you don't see the difference, then your opinion is so uninformed as to not understand the issue at all and is therefore worthless.

OK, maybe my initial post was too inclusive. It shouldn't have been about everyone pro-grokster/pirating. It should have read anyone who uses a lame argument like guns and cars should be illegal to defend pirateing software is almost 99.9% certainly a pirate themselves. (This leaves you a 0.1% chance to get out if you were in that group)

sterlingice

06-06-2005, 02:31 PM

Although I could see a case being made for forcing these companies to at least perform spot checks to remove illegal materials, the same way we have weigh stations for trucks, customs at the borders, and make E-bay and other auction sites pull down stuff that shouldn't be up there.
This I would be greatly in favor of. But, really, no file sharing network has done any such thing. The file sharing "industry" as a whole has had quite a few years now to try and police itself and they have failed miserably. They have been told to do it on numerous occasions and have arrogantly denied and flaunted their ability to try and squeak around laws.

In an ideal world, the MPAA/RIAA and file sharing architects would sit down and hash out a system similar to random checks, as stated above. But neither side has been willing to do this- the AA's have wanted to hack onto people's computers and declare everyone in the world illegal while the file sharing networks just bounce from one system to the next- when one closes, they create another similar system. The MPAA/RIAA have been handing out subpoenas from time to time so I guess that constitutes said "spot checks" but they have been completely initiated by those organizations in self interest and with the resistance of the networks.

This seems like a good middle ground but I have no idea how to properly institute it that wouldn't result in encroaching on rights to privacy. Problem is judges and Congress don't nearly understand technology to the level of even the average user. So all decisions are made on bad analogies to other technology and just a general slowness in regard to rulings and laws passed down.

SI

MrBigglesworth

06-06-2005, 02:40 PM

To scrap Fair Use, I think it's incumbent upon the industry to not only show that something like Grokster or Bittorrent is being used illegally, but that it has a such a devastating impact upon the industry so as to outweigh the legitimate uses of file-sharing programs and existing Fair Use doctrine.
Exactly. The music and video creative industries have nothing to fear from P2P. The music and video production and distribution industries have just as much to fear from P2P technology as buggy-whip and carriage makers had to fear from the automobile. I'm not really shedding any tears over their demise, as I feel they have done more to restrict available music to the consumer than to promote it. P2P will reduce distribution costs to a point where anyone can write a song and have it available to millions, greatly increasing the benefits to consumers.

-Mojo Jojo-

06-06-2005, 03:12 PM

Believe it or not, I supported the Napster decision. The reason? Because Napster was hosting the illegal files. Therefore, they are the distributor of copyright protected information/music/movies. That's blatently illegal and Napster deserved to get bitch-slapped.

Grokster is nothing more than a conduit. They don't host any illegal files. More than 50% of email is illegal SPAM. Should we ban Outlook Express?

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

BrianD

06-06-2005, 03:19 PM

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

I don't think I could complain about Grokster being held to the Aimster standard and losing. I don't like the thought of shutting down all of the P2P programs just because they could be (and are) used for illegal purposes, but I'm not against disallowing the willfull blindness loophole.

JPhillips

06-06-2005, 03:24 PM

Whether right or wrong the music companies are fighting a losing battle. They can never outlaw all file-sharing systems. If they win here another will take its place either in the US or off-shore. In the long runthey can't win the battle against P2P because the technology is out there. Never in human history has an industry been able to stop a technological advancement.

So what should the music industry do? I don't know, but they need to focus on a new business model. The one they are desperately trying to hold onto is slipping away and can't sustain itself.

Blackadar

06-06-2005, 03:33 PM

Napster did not host any files. Napster did host an index. Napster did not get sued for direct copyright infringement (which would be the case if Napster itself hosted the files), they were sued for contributory infringement (i.e. they facilitated infringement by their users). And the copyright holders won. Sony Betamax is not as broad as you're making it out to be. Both Napster and Aimster had noninfringing uses, but both lost under Sony.

In order for a company to be protected from contributory infringement, Sony requires that:

a) the product/service has substantial noninfringing uses AND
b) there is not an ongoing relationship between the direct infringer and the contributory infringer that would allow the contributory infringer to control the use of copyrighted works by the direct infringer.

Napster lost on part (b). Aimster appended to the Sony test:

c) the lack of a relationship in (b) should not be the result of an intentional scheme by the contributory infringer to willfully blind itself to ongoing copyright violations.

Aimster lost on this basis. Grokster, if held to the Aimster standard, will probably lose on that too. Sony is not a get out of jail free card for any and all contributory infringement...

Thanks for the clarifications/corrections. Since you seem to have a better understanding of this case, what's the difference between Napster/Aimster and Grokster? And since Napster/Aimster had already been decided, why did the 9th Circuit use Sony over the Napster/Aimster decisions?

Taking it one step further, how would they even come after Bittorrent? After all, it's not even a central server but a "true" P2P program that relies on various out-of-country websites for links/files. It seems like it's like trying to catch smoke in your hand...

-Mojo Jojo-

06-06-2005, 04:43 PM

Thanks for the clarifications/corrections. Since you seem to have a better understanding of this case, what's the difference between Napster/Aimster and Grokster? And since Napster/Aimster had already been decided, why did the 9th Circuit use Sony over the Napster/Aimster decisions?

Taking it one step further, how would they even come after Bittorrent? After all, it's not even a central server but a "true" P2P program that relies on various out-of-country websites for links/files. It seems like it's like trying to catch smoke in your hand...

I had to write a paper on this stuff back in March. :D It was one of the more fun assignments I've had..

My first post (#63) goes into this some, but I'll clarify. All three of the P2P cases (Napster, Aimster, Grokster) are under Sony to some degree. It's important to note that (pending the Grokster ruling) none of these cases has been reviewed by the Supreme Court. Napster and Grokster were both before the 9th Circuit, Aimster was in the 7th.

Napster failed to qualify for Sony protection because they had an ongoing relationship with their users (the master list of files on the network) which allowed them to police for copyright violations. This was different from Sony, where, after the betamax was sold, Sony no further contact with or ability to control the users.

Aimster created a limitation on Sony for willful blindness. There was nothing in Sony itself to indicate that willful blindness was a factor, but I think the 7th Circuit felt it was an implicit limitation on the protection offered by Sony. And it makes a lot of sense. Assuming (as the circuit courts must) that contributory infringement is a valid claim, it is hard to justify the Sony ruling if you interpret it to allow people to game the system as a trivial means to escape from responsibility for contributory infringement.

The Grokster ruling only took account of Napster and Sony. The lack of control over the users placed Grokster in the Sony precedent rather than the Napster precedent. Since Aimster was decided in a different circuit, the 9th is not required to honor that precedent (although generally the appellate circuit courts will follow precedent from other circuits). In this case they gave Aimster some lip service, but they essentially ignored it, creating a split between the 7th and 9th Circuits.

There is an interesting question that would come up if the Supreme Court adopts the willful blindness test, and that is whether Grokster, in fact, was attempting to evade the Napster precedent. It's pretty obvious that after Napster all of the new P2P systems avoided any central indexing since that was what caused Napster to lose. However, there are other benefits to the supernode structure (decreased hardware and bandwidth costs for the service, no single point of failure, possible performance benefits). Grokster could (and almost certainly would) try to argue that they were not intentionally evading copyright laws, but were merely taking advantage of a superior design. I don't know how that would play out. It will probably be a lot better for Grokster if the case is returned to the 9th Circuit for that evaluation. They're a more liberal court and have already shown that they're receptive to Grokster's arguments. The SCOTUS justices are older than the hills, more conservative, and probably have a rather different relationship with technology and the internet that will make them more receptive to the MPAA's efforts to brand Grokster as evil hackers and pirates.

I agree with the earlier comments that regardless of what happens to Grokster this case is not going to put an end to P2P filesharing. A sophisticated P2P system can be created by a single programmer (Shawn Fanning, Bram Cohen). It's like whack-a-mole, the legal system can't keep up. The danger in the case is the possibility that the Court will overturn Sony itself. Although there is some speculation that this might happen, I think the likelihood is very small. But it would be really bad news for hardware and software developers if they did..

st.cronin

06-06-2005, 05:10 PM

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

JonInMiddleGA

06-06-2005, 06:20 PM

It's like whack-a-mole, the legal system can't keep up.

Which is a handicap on the legal system that needs to be addressed. Starting with putting some serious teeth into laws that punish copyright violators.

The realization that getting caught as an accomplice could mean your new roomie might think you're his next girlfriend would be a good first step.

Blackadar

06-06-2005, 06:46 PM

Which is a handicap on the legal system that needs to be addressed. Starting with putting some serious teeth into laws that punish copyright violators.

The realization that getting caught as an accomplice could mean your new roomie might think you're his next girlfriend would be a good first step.

Punishment > Crime

Next, you'll advocate the Death Penalty for jaywalkers.

Blackadar

06-06-2005, 06:48 PM

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Good question. My answer is I don't really know. I think it's up to the private enterprise - in this case, the media companies - to protect their rights. Let me think on it a bit and get back to you, but it's a very fair question.

sterlingice

06-06-2005, 06:59 PM

Good question. My answer is I don't really know. I think it's up to the private enterprise - in this case, the media companies - to protect their rights. Let me think on it a bit and get back to you, but it's a very fair question.
Unfortunately, that's the big question. The RIAA has tried to "protect their rights" by what is basically hacking into people's computers. If we allowed them the same leeway that has been afforded file sharers to this point, then they'd be allowed to just confiscate every computer in the US and check for stuff at the owner's inconvenience.

SI

JonInMiddleGA

06-06-2005, 07:21 PM

Punishment > Crime

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.

What I do have as a goal is an acknowledgement that thieves are thieves, and that they should be treated as such. And putting them away for a significant length of time is a good start toward that end. As far as I'm concerned, they've forfeited their right to live free, by their inability and/or unwillingness to stop stealing from others.

st.cronin

06-06-2005, 07:57 PM

Airhog

06-06-2005, 08:23 PM

I may have a simplistic view of this situation, but I feel that you cannot prosecute the creators for 3rd party content. the creators did nothing illegal. I think a fitting analagy, is say EA buys the rights to the NFL License for all platforms, PC included. Now Jim makes a game with fake players. Someone comes along, creates a new roster with the real players, and EA sues Jim over it.

Its like a line in the sand, where do you draw it? Give the end users too much freedom, and they will abuse it. If you give the content providers too much power, then you end up with freedom being suppressed.

If the MPAA and the RIAA had there way, you would not be able to copy anything for home use. You wouldnt be able to record your favorite T.V. show on TIVO, or backup your music CD's. And I think that goes too far.

MrBigglesworth

06-06-2005, 08:35 PM

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.
This is from Matthew Yglesias, who sums it up better than I could and also addresses not only the issue of enforcing the laws that st. cronin asked about, but also the rediculous punishment ideas of JonInMiddleGA:

There is, however, a secondary point that is in some ways even more important, though the respondents don't like to make the argument for legal purposes. This point is that with intellectual property, unlike with physical property, the socially optimal amount of infringing is non-zero. With rivalrous goods, theft can never be a Pareto-optimal exchange (i.e., it always makes the property owner worse off) and while there are probably occassional instances of theft that help improve social welfare (the proverbial man who steals a loaf of bread to feed his starving familty) this sort of thing is, in fact, exceedingly rare, especially in a developed country where, though poor people face a lot of very serious difficulties, nobody actually needs to steal to avoid starvation.

Intellectual property isn't like that at all. Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place. Indeed, the copyright holder may benefit through, e.g., higher concert ticket or merchandise sales or because the infringer exposes the work to a broader audience, some proportion of which winds up paying for the work. But -- and it's important to keep this in mind -- the case for infringement in these cases where there's no crowding out of purchases does not depend on the notion that the holder may reap some spillover benefits. The infringement itself, as long as it's not a crowding infringement, is a benefit to society just on its own.

In cases of real property, of course, we need to balance the undesirability of theft against the costs of enforcement. No big city tries seriously to bring the rate of theft and burglary to zero because the costs of doing so would outweigh the benefits. But if there were a cost-free mechanism of accomplishing this goal, any sensible mayor would implement it. The stealing, as such, is always a bad thing. Intellectual property is different. Establishing the death penalty for copyright infringement would probably bring its incidence to almost nothing. But not only would this be grossly disproportionate to the scale of the wrongdoing, eliminating infringement would actually be a bad thing, over and above the issue of negative externalities the Grokster respondents are raising.

BrianD

06-06-2005, 08:41 PM

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Maybe Grokster shouldn't have to worry about it. Is there any reason the RIAA couldn't set up their own Grokster peering points with lots of content and go after anybody that shows up in their logs?

RendeR

06-06-2005, 10:38 PM

Maybe Grokster shouldn't have to worry about it. Is there any reason the RIAA couldn't set up their own Grokster peering points with lots of content and go after anybody that shows up in their logs?

this would be, I think, Entrapment, which is not legal as far as i know, but I'm old and senile, ignore me.

Greyroofoo

06-06-2005, 10:55 PM

Personally I think people who illegally share music should be fined $5 /$10 for every illegal song/movie in their possession. Jailling everyone who illegally pirates movies would just be a huge burden on the prison system and taxpayers

Or if that doesn't work there's always slow painful torture

JonInMiddleGA

06-06-2005, 10:59 PM

This is from Matthew Yglesias, who sums it up better than I could and also addresses not only the issue of enforcing the laws that st. cronin asked about, but also the rediculous punishment ideas of JonInMiddleGA:

Wrong again Biggles. Or at least, the halfwit you're quoting is wrong.
Specifically, the notion that "The infringement itself ... is a benefit to society just on its own."

Uh-huh. Right. Fucking thieves benefit society. Ho-kay. And anybody with a half a brain is supposed to take this guy seriously after making that claim? Right.

Then again, what should I expect from some 20-something barely out of school? Harvard or otherwise. But you did provide a great piece of evidence if we can ever get a trial for the truism that "There is no shortage of educated idiots in the world".

st.cronin

06-07-2005, 12:26 AM

-Mojo Jojo-

06-07-2005, 01:27 AM

Nobody has really tried to seriously answer my question which had nothing to do with the morality of file-sharing or copyright infringement. Assume that there is illegal pirating occuring, and that we wish it to stop. What, in your opinion, is the proper way to prevent it?

There's no simple one-part answer. I'd don't mind to see for-profit P2P companies held liable for contributory infringement. If they are going to make a profit off it, they should be obligated to pay for the rights to the content they are profiting off it. It's a more difficult question for P2P systems created on a non-profit (possibly open source) basis. It's a different ethical question for one, and it is most certainly a different legal question. It may be difficult to identify the creator(s) of the software and even if you do it is quite possible they will be insolvent (college students), and likely that even if they are not they can't pay the fine (which would be an absurdly high amount of money), and in any case once the system is out in the wild hitting the developer up for a fine won't accomplish anything other than deter other developers (and it's fairly obvious that Napster and Aimster have had little deterrent effect). There are also jurisdictional issues for systems developed internationally (although I think most countries have something similar to contributory infringement). P2P systems are likely here to stay.

So the best bet is a combination of pursuing individual infringers (which the RIAA is already doing), technological attacks on file-trading systems (i.e. flooding them with dummy files and such, although this opens a whole new bag of legal questions), and attacking the black market by providing the product at a reasonable cost. Arguably iTunes is already doing this (although they may not have found the optimal price point and there are plenty of objections to their DRM), and there are starting to be online movie distributors as well. There's still not much available in the realm of legal TV downloads (and I really miss downloading the Daily Show after the latest round of bittorrent crackdowns).

MrBigglesworth

06-07-2005, 02:30 AM

Wrong again Biggles. Or at least, the halfwit you're quoting is wrong.
Specifically, the notion that "The infringement itself ... is a benefit to society just on its own."

Uh-huh. Right. Fucking thieves benefit society. Ho-kay. And anybody with a half a brain is supposed to take this guy seriously after making that claim? Right.

Then again, what should I expect from some 20-something barely out of school? Harvard or otherwise. But you did provide a great piece of evidence if we can ever get a trial for the truism that "There is no shortage of educated idiots in the world".
Jon, no offense, and I mean this with all sincerity, this is the most ignorant thing I have ever read on this or any other message board. And I don't mean that in a personal attack kind of way, I mean that in an actual Merriam-Webster "lacking knowledge or comprehension of the thing specified". Frankly, I'm stupified. His rationale was right there in what I excerpted:

Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place.
That's black and white, not really much anyone can add to that. And I don't think that can be argued. Of course there are some grey areas in the issue, but the fact that some if not most of the transactions benefit one party and do no harm to the other. Terms like 'halfwit', 'half a brain', and 'idiot', all while not offering a single refutation to any premise in the argument, do more to show the ignorance of the accuser than anything else.

Blackadar

06-07-2005, 06:09 AM

I'm just curious, how do those of you who argue Grokster should be allowed to exist the way it does think illegal file sharing should be prevented?

Ok, I said I'd come back and give it some thought.

And before I start, let me say that nothing will prevent all illegal file sharing. Just like nothing has prevented games from being copied, bootlegs from being made and the like. The cat's been out of the bag for many, manyyears. It's a matter of minimizing the impact. I think it's a 5-pronged approach in order to do so.

1) Technological Advancement, 2) Education, 3) Updating Laws, 4) Lawsuits and 5) Changing Business Practices.

1. Technological - Technological advancements like Digital Watermarks, encryption and the like. And I know that whatever is made can be hacked. That's not the goal. It's to make it inconvenient and/or risky enough to not be worth the trouble. Create new media types that are in demand. Create new technologies along with these media types. It's like erecting a chain-link fence - you want to keep the honest man out. I'd even advocate creating an imbedded "call home" signal so that it's easier to pinpoint illegal files.

2. Education - I think it's a matter of keeping people - especially kids and their parents - aware of the dangers (viruses), penalities (fines) and alternatives to file sharing. Much like MADD helped with Drunk Driving, this type of education is invaluable. Just look at this board - many of us have been file-sharers at one point and I'd bet many of us have stopped.

3. Updating Laws - the Copyright laws and the penalities associated with them should be changed. I'm not advocating jail time for file-sharers - that's absurd, given the type of crime and the cost to society to lock people up - but let's make it easier to enforce the laws AND tailor them so that they are enforcable.

4. Lawsuits - This is the industries' stick. And yes, as the holder of intellectual property, you are the one primarily responsible for protecting it. It has always been that way. Let the suits continue. The record industry made a mess of the original ones, trying to get summary judgments against John Does and thinking they had supoena power. They have to follow the laws and leave this threat out thee.

5. Changing Business Model - much of what the music industry has done has been counter-productive. Their business model changed and they failed to change with it. They liked their protected (and in many cases, colusional and illegal) system for distribution of content. Well, that's gone. Continue to provide alternatives for digital distribution, which is far cheaper. Provide incentives for those who purchase in the brick-and-motar stores with items not available digitally. By embracing the digital world, they will have better control over it. Many people copied music simply because it was the easiest way to obtain it digitally. There really wasn't any other way. And instead of adapting, the music industry stuck their heads up their asses and screamed at Congress.

Taken as a whole, this is a framework for how to prevent the vast majority of illegal file-sharing. The other thing is to finally recoginze the true economic impact of the problem. All illegal file-sharing is bad, but only some small part of it truly costs an organization direct income. If I downloaded a song by Jon Bon Jovi today, it's bad and illegal. But it's not a direct income cost because I would have never purchased it anyway. That doesn't mean it's right - don't mistake my point - but it's not money out of someone's pocket. It is if I would have purchased it or I share it with someone else who would have. I believe that once the true economics of file sharing are better understood - without all the hyperbole and positioning - media companies will be better able to focus their efforts to maximize their returns from these efforts.

Blackadar

06-07-2005, 06:11 AM

I disagree. And although I'd personally like to see these thieves executed in a slow & painful manner, I sadly admit that isn't a realistic possibility.

What I do have as a goal is an acknowledgement that thieves are thieves, and that they should be treated as such. And putting them away for a significant length of time is a good start toward that end. As far as I'm concerned, they've forfeited their right to live free, by their inability and/or unwillingness to stop stealing from others.

I love Jon...at least he's consistent. "Kill em all and let God sort em out!" :)

st.cronin

06-07-2005, 08:32 AM

Arles

06-07-2005, 09:59 AM

Pareto-optimal instances of infringing use -- which is to say instances that make some people better off, and no people worse off, than they would have been had the infringing not taken place -- are exceedingly common. Indeed, it seems to me that most copyright infringement is like that. People "steal" a file that, had they been unable to "pirate" it, they simply wouldn't have bought. In a case like this, the infringer is made better off, and the copyright holder is no worse off than he would have been had the infringement not taken place.
Using this logic, we should allow theft for phone, cable, hi-speed internet and pay per view. All of the fiber optics and bandwidth has already been setup for phone and cable with minimal cost per unit added. And pay per view has essentially no cost after the licensing fee is made (much like music and movies).

Marginalizing the impact of theft to somehow rationalize illegal file sharing seems like a dicey argument. You can continue this line of thinking even further into areas of low-cost items. If it's OK to infringe on copyrights for music, movies and pay per view, why not say it's OK to steal 5-cent pieces of gun from liquor stores or cups of soda from a restaurant? At what point does the cost to the business actually make theft "bad'?

JonInMiddleGA

06-07-2005, 10:09 AM

Jon, no offense, and I mean this with all sincerity, this is the most ignorant thing I have ever read on this or any other message board. And I don't mean that in a personal attack kind of way, I mean that in an actual Merriam-Webster "lacking knowledge or comprehension of the thing specified". Frankly, I'm stupified. His rationale was right there in what I excerpted:

That's black and white, not really much anyone can add to that. And I don't think that can be argued. Of course there are some grey areas in the issue, but the fact that some if not most of the transactions benefit one party and do no harm to the other. Terms like 'halfwit', 'half a brain', and 'idiot', all while not offering a single refutation to any premise in the argument, do more to show the ignorance of the accuser than anything else.

Yes Biggles, it's black and white ... black and white one of the most ridiculous arguments that I've ever seen anyone seriously present. The "benefit one, do no harm to another" argument is 100% irrelevant to whether a theft takes place. It would do me no monetary harm for you to come on my property & steal a pecan lying on the ground was half rotten ... but I don't recommend you try it without permission. The "harm" lies in the act itself, the act of deciding that you are entitled to something that you have NO right to. None, nada, zip, zero. It ISN'T yours, therefore, you can take it without permission only as a thief. And it's this sort of sense of entitlement that has done such tremendous damage to this nation over the past 70 years or so.

No Biggles, I didn't bother to refute it. It's like trying to argue whether water is wet or fire is hot, so things are so obvious that arguing them is pointless. I'm sorry, but anybody who doesn't understand the simple concept behind this is a damned fool, and as has been noted, I am not a man who tolerates fools well nor often. It would have been, as a lot of things are, like trying to teach a pig to read -- it does you no good & annoys the hell out of the pig.

Samdari

06-07-2005, 10:21 AM

I thought you were a republican/conservative? Do you guys no longer back states rights and individual property rights?

Scary how much you support government control.

Republicans/conservatives are all for government control when they have control of the government, and it allows them to tell others how to live their lives, and against it when the dems are in power.

Come to think of it, the same can be said of the Democrats.

Goodness, but I am disgusted by the the two parties that control our government.

Blackadar

06-07-2005, 10:22 AM

Using this logic, we should allow theft for phone, cable, hi-speed internet and pay per view. All of the fiber optics and bandwidth has already been setup for phone and cable with minimal cost per unit added. And pay per view has essentially no cost after the licensing fee is made (much like music and movies).

Marginalizing the impact of theft to somehow rationalize illegal file sharing seems like a dicey argument. You can continue this line of thinking even further into areas of low-cost items. If it's OK to infringe on copyrights for music, movies and pay per view, why not say it's OK to steal 5-cent pieces of gun from liquor stores or cups of soda from a restaurant? At what point does the cost to the business actually make theft "bad'?

No Arles, you're not using the same logic in your examples. The key phrase is that "they simply wouldn't have bought it". Phone, cable, hi-speed internet has some small ongoing cost (though billing, technical support and hardware support aren't as minimal as many people think) but the difference is that those services would have been generally purchased. If I cut off your phone service, you're going to get another phone. They are also tangible services - there's only so much bandwidth for access, wire pairs in the ground, etc.

Measuring the lost revenue from media piracy is far different than trying to compare it to something tangible like gum (cost to manufacture each pack), soda (cost for that particular drink) or even necessary services like telecommunications. If I downloaded a Britney Spears song today, it is UNDOUBTEDLY illegal as it is a copyright infringement. However, it does not cost the media company anything - there is no opportunity cost nor lost revenue as I would never purchase such a product. Zero. Zip. Zilch. Their only incurred cost is trying to prevent me from illegally obtaining their product - not the product cost itself.

In other words, you need to find a better example.

Blackadar

06-07-2005, 10:28 AM

And it's this sort of sense of entitlement that has done such tremendous damage to this nation over the past 70 years or so.

I'm not going to respond to your rant, since it's a non-response to Biggs.

I did find this phrase interesting. Guess "Separate But Equal" and all back-of-the-bus shit worked better? The Great Depression would still be in full swing, too! After all, if we rolled back 70 years, that's where we'd be. Do you long for the New Deal years? Or the rise of fascism? Or Isolationism? :D

John Galt

06-07-2005, 10:32 AM

I think there are a lot of important differences between intellectual property and real property that make some of these analogies pretty bad. There are also important differences in the area of music specifically.

First, we have a rather odd opt-out system for protecting intellectual property of professional performers. If I go out on the street, sing a song, and someone records it and replays it without making a profit, I'm unlikely to be able to collect a dime. However, if I record a Metallica performance in a public venue, and then send that tape to others without a profit, I could be in trouble. This is the case even though Metallica has not specifically opted-in to protect their performance on that given day. So, the system seems to arbitrarily decide whose intellectual property is protected.

Second, as others have pointed out, theft of intellectual property is at least different because it does not deprive the original owner of use of the property (as theft of real property does). This doesn't condone the behavior, but to say it is the same as theft is just wrong.

Third, certain "theft" of intellectual property is not "theft" at all. "Fair use" covers a wide range of "theft" that the RIAA seems to have no respect for. I'm not talking about the nonsense "1 copy rule" that people seem to think justifies all sharing. Rather, I think educational rebroadcast and other non-commercial uses are being totally squashed. If you don't know the tragic example of "Eyes on the Prize," you should read about it. The problem I have with the overly broad efforts to stifle file-sharing is that the SHARING, IN ITSELF, cannot necessarily be said to be outside "fair use." If I'm a teacher sending a file to teachers all across the country to utilize in class, that is classic fair use. Yet, if all file sharing is shutdown, that is blocked.

Now, I don't think that is what most file-sharing really is, but I think it is a bad idea to throw the baby out with the bath water.

Fourth, government protection of intellectual property is not a necessary part of our legal system. Coca-Cola presents the most famous example of a company refusing to have its product patented. The reason they did so is that patents expire (another reason treating theft like intellectual property theft is crazy) and they wanted to keep their product a secret. So, Coca-Cola hides their formula. Now, this isn't the same with music, but the fact remains that the music industry has made a lot of this mess themselves. Rather than designing an effective copy-protection scheme before releasing digital media, they released unprotected material and want the government to bail them out. In other words, they want all the benefits of the federal protection system without incurring any of the costs.

Fifth, the aggressive copyright rules have changed substantially in the last 200 years. Gone are the days when intellectual property becomes "public" after a certain measure of time. Instead, companies lobby Congress and the copyrights keep getting extended. So, you have companies like Disney who were made almost entirely out of "stealing" "public" intellectual property in the form of children's stories, refusing to let their works enter the same "public domain" from which their company was created. In music, the whole crackdown on sampling is similarly situated.

Sixth, their are externalities to the way our music system is designed that make aggressive protection of intellectual property a questionable idea. This is not about protecting artist rights because very few artists actually own their own works. Even as a wannabe-law professor, almost every journal I submit to requires me to forgo my copyright so they have complete control of my work. The distrubutor ownership model means negotiations about use proceed very differently. One might imagine an artist actually encouraging others to play or sample their work because it would help them over the long run. Distributors, on the hand, actually protect their copyrights by requiring the end users to pay fees for not only the sample requested, but a catalog of others as well (this has led to an interesting series of antitrust cases). I have no problem, per se, with the distributor ownership model, but I think it is important to recognize how they change the negotiation process substantially.

None of this is to say either way whether I think Grokster and the likes should be protected. I'm pretty sure I think the vast majority of file sharing should be illegal. However, I think it is a big mistake to eliminate the technology in its entirety because of the value it holds (albeit that is its minor use). And more importantly, I think the analogies to theft really do a disservice to the debate on the issue because our intellectual property system is pretty unique and different than the law of real property theft.

JonInMiddleGA

06-07-2005, 10:49 AM

I did find this phrase interesting. Guess "Separate But Equal" and all back-of-the-bus shit worked better? The Great Depression would still be in full swing, too! After all, if we rolled back 70 years, that's where we'd be. Do you long for the New Deal years? Or the rise of fascism? Or Isolationism? :D

Well, for a second there I thought you were going to miss the time frame I was shooting in the general vicinity of. But for getting FDR in there, you get a brownie point. Ultimately, I think he may have cost us more than he gained for us.

Crapshoot

06-07-2005, 11:16 AM

Well, for a second there I thought you were going to miss the time frame I was shooting in the general vicinity of. But for getting FDR in there, you get a brownie point. Ultimately, I think he may have cost us more than he gained for us.

Now I'm curious. What time frame are you picturing as the ideal ? The 1930's ? The 40's ?

JonInMiddleGA

06-07-2005, 11:58 AM

Now I'm curious. What time frame are you picturing as the ideal ? The 1930's ? The 40's ?

Crap, I think my point was missed on that, or at least too much was read into it.

I'm not particularly pointing to 19XX or 18XX or 17XX as an "ideal", rather I was simply pointing toward a timeframe where the notion of personal responsibility took a nosedive.

Blackadar

06-07-2005, 12:03 PM

JonInMiddleGA

06-07-2005, 12:10 PM

And I'm sure you have some evidence or personal experiences to back this theory up?

C'mon Blackie, how much "evidence" do you need on this one beyond the nose on your face. That's a key timeframe for the attitude of entitlement, a major expansion of the concept of governmental redistribution of wealth in the U.S.

We can disagree about the merits of it, but don't play dumb, that'd just be tedious.

Crapshoot

06-07-2005, 12:29 PM

Crap, I think my point was missed on that, or at least too much was read into it.

I'm not particularly pointing to 19XX or 18XX or 17XX as an "ideal", rather I was simply pointing toward a timeframe where the notion of personal responsibility took a nosedive.

Yeah, I did misread that. That being said, if you see as more of a sudden nosedive as opposed to a gradual one, I'm curious if there's an event or a specific term (say, Roosovelt) which was, in your parlance, the beginning of the end. In essence, I don't neccessarily disagree about the culture of entitlement, but I want to know what you're percieving as its catalyst.

Blackadar

06-07-2005, 02:13 PM

C'mon Blackie, how much "evidence" do you need on this one beyond the nose on your face. That's a key timeframe for the attitude of entitlement, a major expansion of the concept of governmental redistribution of wealth in the U.S.

We can disagree about the merits of it, but don't play dumb, that'd just be tedious.

So what you're saying is blah blah blah, you wish for an era you know little about nor experienced. Talk to me about personal accountability with Railroad Barrons and the conditions that led to the formation of Unions in the early 1900s. Tell me about personal responsibility in the Roaring 20s and the Crash of 1929. Tell me about entitlement with soup kitchens in the 30s. Teach me about the fact that it took WWII and some of the largest Federal Government programs in the 1940s to pull the USA out of the Depression.

Or do you want to go back to a pre-industrial, agrarian economy? Or what is your point?

MrBigglesworth

06-07-2005, 02:16 PM

Using this logic, we should allow theft for phone, cable, hi-speed internet and pay per view. All of the fiber optics and bandwidth has already been setup for phone and cable with minimal cost per unit added. And pay per view has essentially no cost after the licensing fee is made (much like music and movies).

Marginalizing the impact of theft to somehow rationalize illegal file sharing seems like a dicey argument. You can continue this line of thinking even further into areas of low-cost items. If it's OK to infringe on copyrights for music, movies and pay per view, why not say it's OK to steal 5-cent pieces of gun from liquor stores or cups of soda from a restaurant? At what point does the cost to the business actually make theft "bad'?
That doesn't apply to phones because most people would pay for a phone, and cable as well. Hi-speed internet also has a bandwidth limit, so stealing that is hurting the company you are stealing from. Taking 5 cent pieces of gum and cups of soda are also hurting a company.

And once again, the point is not that ALL file sharing is socially optimal, but a good portion of it, and that makes file sharing a a good thing in accordance with the intent of IP laws. That intent is to increase products that are available to the consumer, not protect the profits of the music distribution and production business.

EDIT: Sorry, repeated points made my Blackader before I read his post

MrBigglesworth

06-07-2005, 02:37 PM

Yes Biggles, it's black and white ... black and white one of the most ridiculous arguments that I've ever seen anyone seriously present. The "benefit one, do no harm to another" argument is 100% irrelevant to whether a theft takes place. It would do me no monetary harm for you to come on my property & steal a pecan lying on the ground was half rotten ... but I don't recommend you try it without permission. The "harm" lies in the act itself, the act of deciding that you are entitled to something that you have NO right to. None, nada, zip, zero. It ISN'T yours, therefore, you can take it without permission only as a thief. And it's this sort of sense of entitlement that has done such tremendous damage to this nation over the past 70 years or so.

No Biggles, I didn't bother to refute it. It's like trying to argue whether water is wet or fire is hot, so things are so obvious that arguing them is pointless. I'm sorry, but anybody who doesn't understand the simple concept behind this is a damned fool, and as has been noted, I am not a man who tolerates fools well nor often. It would have been, as a lot of things are, like trying to teach a pig to read -- it does you no good & annoys the hell out of the pig.
Now that is a better, until you get to the bottom paragraph where it is just devolves into arrogant nonsense ("I'm right so why bother explaining it to the simpletons?")

It seems that you have more of a problem with an entitlement attitude than the actual event. When it is your money, I can understand. But the exchanges we are talking about have no effect on the artist, and in fact may only have a POSITIVE effect in the more widespread nature of that artist's work. Similarly, I don't see why you would be upset that a guy took a half rotten pican off your property (even though it is slightly different, since a pecan is real property). The government should be concerned with socially optimum outcomes, and something that helps one person while doing nothing to someone else seems like a no-brainer to me.

sabotai

06-07-2005, 03:00 PM

Airhog

06-07-2005, 04:26 PM

I have to agree with sabotai. even though he failed to debate the topic at hand, his post was a nice guide to the differance between the two.

Arles

06-07-2005, 06:21 PM

No Arles, you're not using the same logic in your examples. The key phrase is that "they simply wouldn't have bought it". Phone, cable, hi-speed internet has some small ongoing cost (though billing, technical support and hardware support aren't as minimal as many people think) but the difference is that those services would have been generally purchased. If I cut off your phone service, you're going to get another phone. They are also tangible services - there's only so much bandwidth for access, wire pairs in the ground, etc.

Measuring the lost revenue from media piracy is far different than trying to compare it to something tangible like gum (cost to manufacture each pack), soda (cost for that particular drink) or even necessary services like telecommunications. If I downloaded a Britney Spears song today, it is UNDOUBTEDLY illegal as it is a copyright infringement. However, it does not cost the media company anything - there is no opportunity cost nor lost revenue as I would never purchase such a product. Zero. Zip. Zilch. Their only incurred cost is trying to prevent me from illegally obtaining their product - not the product cost itself.

In other words, you need to find a better example.
There are many people leaching cable and premium movie stations for free that would simply go the antenna route if it got taken away. I knew a guy in college who had the "black box" when rooming at his buddy's house. Once the buddy's dad found out (who owned the house), he had him remove the black box. They didn't purchase all the premium stations and pay-per view after that happened.

I would state that pay-per-view use has a direct parallel to music and software piracy. So, I guess all you guys would have no problem with someone stealing premium channels or pay-per-view as well.

JonInMiddleGA

06-07-2005, 06:30 PM

I would state that pay-per-view use has a direct parallel to music and software piracy. So, I guess all you guys would have no problem with someone stealing premium channels or pay-per-view as well.

I'd be shocked if many of them had a problem with it, since those cost the companies nothing but help the poor down-troddens entertain themselves. Or since movies are just ideas on film & nobody owns ideas. Or whatever other bullshit justification they choose to use to try to legitimize theft.

Of all the issues that are regular topics of debate around here, I don't believe there's any that provides a better insight into the character/lack thereof of the posters than this one.

JonInMiddleGA

06-07-2005, 06:33 PM

In essence, I don't neccessarily disagree about the culture of entitlement, but I want to know what you're percieving as its catalyst.

Sorry, I almost missed your question amidst some of the clutter.

I believe that the net effect of the FDR-era social programs was to ingrain the culture of entitlement so deeply as to end virtually all hope of ever eradicating it. It's not any one program/policy in particular, but rather the sum total of them - which amounted to "the government will fix it for you ... we'll just rob the pockets of the successful & then pass it around".

st.cronin

06-07-2005, 06:34 PM

JonInMiddleGA

06-07-2005, 06:35 PM

The government should be concerned with socially optimum outcomes, and something that helps one person while doing nothing to someone else seems like a no-brainer to me.

Well, we appear to disagree on what the government "should" be concerned with.

And we disagree that there is some sort of "right" to be helped (which is how the latter half of the quote above appears to read).

MrBigglesworth

06-07-2005, 07:26 PM

I would state that pay-per-view use has a direct parallel to music and software piracy. So, I guess all you guys would have no problem with someone stealing premium channels or pay-per-view as well.
Would pay-per-views still get produced if nobody paid for them? Probably not. Would music still get made even if nobody paid for it? Most definitely. So they are not equal.

If you add up all the social benefits of file sharing, they greatly exceed any negative consequences, mostly because nobody has shown there to be any negative consequences so for. Music is still being made, as much as ever.

MrBigglesworth

06-07-2005, 07:43 PM

Arles stole half my thunder, but the other refutation is this:

Whatever type of property you're talking about has VALUE. If it didn't have value, there would be no point in charging anybody money for it. To take something that has value to the taker without paying for it is akin to taking charity. I think we all agree accepting charity should be limited to what is needed, which is obviously NOT what we are talking about.
Your analysis misfires because charity is not Pareto Optimal: with charity in terms of valuable goods there is always a winner and a loser. If you read John Galt's excellent summary on the differences between real and intellectual property you can see how this is not always the case with file sharing. That's not to say that there should just be unlimited file-sharing, because that will hurt some industries like software development and movie production, which sometimes need big budgets. But it also means that a huge crack down (while also being impossible) isn't necessarily the best social choice.

And also, consider watching TV and then channel surfing during the commercials. Is that stealing? What about going over to someone's house to watch a pay-per-view, is that stealing? In each case you are getting the benfits without paying anything, and I don't think it is charity. It is part of the business model that those companies have chosen.

MrBigglesworth

06-07-2005, 07:49 PM

Well, we appear to disagree on what the government "should" be concerned with.

And we disagree that there is some sort of "right" to be helped (which is how the latter half of the quote above appears to read).
I know you are a totalitarian, but if in general the government sees an opportunity to help one person out while giving no negative effect to anyone else, you don't think that is a good idea?

st.cronin

06-07-2005, 07:53 PM

Your analysis misfires because charity is not Pareto Optimal: with charity in terms of valuable goods there is always a winner and a loser.

How is that true? Quite often charity involves property that has ZERO value to the donator. In some cases because of tax law, the property may even have NEGATIVE value.

st.cronin

06-07-2005, 08:08 PM

dola

neither of your examples is anything like what I'm talking about which is taking something for nothing - in the pay-per-view, somebody is paying for it, which is all that is required afaik (i've never used pay-per-view).

Arles

06-07-2005, 08:24 PM

What about going over to someone's house to watch a pay-per-view, is that stealing? In each case you are getting the benfits without paying anything, and I don't think it is charity.
If someone goes over to a friend's house to listen to that person's new CD - that is not stealing. It's no different than watching a DVD with your buddy or girlfriend. Where the theft comes in is when someone illegally obtains ownership of something they did not purchase. If your friend wants to lend you his CD or DVD and forgo ownership until you give it back - that's a gift and is OK. But to just copy something to where you both have ownership of an item is theft and it's not the same as going over to someone's house to watch a show or listen to a CD.

Would pay-per-views still get produced if nobody paid for them? Probably not. Would music still get made even if nobody paid for it? Most definitely. So they are not equal.
But the quality would most definately suffer. Without being able to charge for music, it would be left only to those that could afford the instruments, recording equipment, time and other aspects of creating good music. You would need writers, stage musicians and recording editors to all work for free.

There's a great parallel to pay-per-view or movies. They would also be made if no one charged for them - but they would be along the level of "school-project" quality much like the "backyard fun" music that would be made if it was free to all.

If you add up all the social benefits of file sharing, they greatly exceed any negative consequences, mostly because nobody has shown there to be any negative consequences so for. Music is still being made, as much as ever.
That's because of the scale of the problem. People are bootlegging and stealing cable right now as well - but movies and pay-per-view are still made. That doesn't mean that if someone steals cable or pay-per-view they should get away with it without consequence. Imagine if everyone (except a select few to populate the file share) downloaded music for free. Do you think music would still be made at the same quality and quantity as now?

So, your argument seems to be one of scale. As long as the scale of the theft does not impact the quality and availablity of the products, you see no problem with it. But, I gather that if professional musician ceased to be a viable vocation and all that was left were garage bands - you may suddenly feel that there is a problem.

Blackadar

06-07-2005, 08:38 PM

I'd be shocked if many of them had a problem with it, since those cost the companies nothing but help the poor down-troddens entertain themselves. Or since movies are just ideas on film & nobody owns ideas. Or whatever other bullshit justification they choose to use to try to legitimize theft.

Of all the issues that are regular topics of debate around here, I don't believe there's any that provides a better insight into the character/lack thereof of the posters than this one.

I'll give this what it deserves. :rolleyes:

I guess if you can't win the debate, just assassinate the character.

Fascism, the refuge of the truly stupid and afraid.

Blackadar

06-07-2005, 08:44 PM

Arles stole half my thunder, but the other refutation is this:

Whatever type of property you're talking about has VALUE. If it didn't have value, there would be no point in charging anybody money for it. To take something that has value to the taker without paying for it is akin to taking charity. I think we all agree accepting charity should be limited to what is needed, which is obviously NOT what we are talking about.

Now that JIMG's back on the good ole' ignore list...let's get back to the debate at hand.

We're all talking in circles now, bogged down in the details. I've never said that the property didn't have value, nor would I argue otherwise. All I've stated is that property - even if illegally downloaded and used - may not have any extra associated revenue were it not to be "stolen". It is not a matter of simple dollars lost and cost. On those points, a media company would not have much of an argument. They would on intellectual property and moral grounds.

I have yet to see anyone say that my post above on how to attack file-sharing in general is misguided or untenable.

Celeval

06-07-2005, 08:55 PM

We're all talking in circles now, bogged down in the details. I've never said that the property didn't have value, nor would I argue otherwise. All I've stated is that property - even if illegally downloaded and used - may not have any extra associated revenue were it not to be "stolen". It is not a matter of simple dollars lost and cost. On those points, a media company would not have much of an argument. They would on intellectual property and moral grounds.
A similar argument with even less physical capacity than the download-a-cd-you-wouldn't-have-bought argument: I didn't watch much television last week. I saw a couple decent reviews for 'Beauty and the Geek', went online, and downloaded (not via grokster, fwiw) the first episode. While I do regularly get that channel on my television, the TV was off during the time it was on. I didn't pay for it (i.e. there were no commercials during the downloaded show). There seems to be zero loss to the station, as there is no way for me to go back and watch the show with said commercials, promos for late news, etc. There is measurable gain to the station, as I will likely watch the second episode tomorrow night (with commercials, promos and the like); and possibly, if I like that episode, the rest of the season.

I understand the moral and ethical arguments. I don't download movies, nor do I download music (although I listen to my share of internet radio and purchase from iTunes). I have used bittorrent and the like to catch up on television shows similar to the above - and that echos BA's point above, in that there is no measurable revenue there, and may push the rulings into a question of intellectual property and copyright.

JonInMiddleGA

06-07-2005, 09:21 PM

I'll give this what it deserves. :rolleyes:

I guess if you can't win the debate, just assassinate the character.

Fascism, the refuge of the truly stupid and afraid.

Blackie, that's just what I'm getting at -- I don't believe there's much character to those who support these thieves. Or what there is of it is sorely lacking.

MrBigglesworth

06-07-2005, 09:46 PM

How is that true? Quite often charity involves property that has ZERO value to the donator. In some cases because of tax law, the property may even have NEGATIVE value.
If that is the case, that the charitable gift has no value, then what makes it immoral to not accept it if you are not on the lowest rung of society? If it is something that has no value to someone, then it can be reasoned to be something that can be had pretty easily. For example, if I see something along the side of the road waiting for the garbage man (implying it has no value to the owner), and I like it I might take it, even though I don't need it. I don't think that is immoral.

neither of your examples is anything like what I'm talking about which is taking something for nothing - in the pay-per-view, somebody is paying for it, which is all that is required afaik (i've never used pay-per-view).
With music, someone pays for it, then rips it and puts it on a P2P network. So in both music and pay-per-view there is someone purchasing it and then someone benefiting for free.

MrBigglesworth

06-07-2005, 10:08 PM

But to just copy something to where you both have ownership of an item is theft and it's not the same as going over to someone's house to watch a show or listen to a CD.
That's what makes IP different from real property, in that more people having it is not at the detriment to others.

But the quality would most definately suffer. Without being able to charge for music, it would be left only to those that could afford the instruments, recording equipment, time and other aspects of creating good music. You would need writers, stage musicians and recording editors to all work for free.
I think you can make a credible argument that if the big music companies weren't around, quality and choice for the consumer would go up. The record companies stifle innovation by breeding commercial bands that would have high profit margins. But anyway, even if every song ever recorded was on everyone's computers, people would still go to concerts and go to bars and nightclubs to listen to music. The musicians would not be starving, and the writers would be making money. And people still work on creative works even if they don't get paid directly. Open source software is some of the better software out there, the political blogs are better than the editorial pages on the NYT in many cases, etc.

There's a great parallel to pay-per-view or movies. They would also be made if no one charged for them - but they would be along the level of "school-project" quality much like the "backyard fun" music that would be made if it was free to all.
Have you ever gone into a bar and heard a good musical act with original content? They aren't getting huge record deals, and they can put out some good music. Movies are different than music, a movie like Revenge of the Sith can not be made without an investment of millions of dollars. Ashley Simpson's 'Pieces of Me' does not require $100 million to produce. But that is why movies require IP laws, to protect the consumer.

Imagine if everyone (except a select few to populate the file share) downloaded music for free. Do you think music would still be made at the same quality and quantity as now?
Yes. As I mentioned above, creative works with low initial investments will always be made in large quantities.

So, your argument seems to be one of scale. As long as the scale of the theft does not impact the quality and availablity of the products, you see no problem with it. But, I gather that if professional musician ceased to be a viable vocation and all that was left were garage bands - you may suddenly feel that there is a problem.
No, as soon as music would be available in lesser quality and assortment there would be a problem. But as I have explained several times, that would never happen. I do not see how making it easier to mass distrubute music will lower the choices available, that's completely counter-intuitive. And all evidence from other media forms says that music will continue to be produced even if it is impossible to become super-rich doing it.

st.cronin

06-07-2005, 10:18 PM

MrBigglesworth

06-07-2005, 10:38 PM

Well, let it be noted that quite a few have gone from defending Grokster as being in the letter of the law to arguing that the laws Grokster enables to be broken don't need to be honored. That's at least more honest.
I don't know if you were talking about me, but I do think that Grokster itself is following the law. And I think Grokster technology is very beneficial to society.

st.cronin

06-08-2005, 09:59 AM

I don't know if you were talking about me, but I do think that Grokster itself is following the law. And I think Grokster technology is very beneficial to society.

I guess my point was that if to argue that Grokster is law-abiding, you almost have to believe that the crimes Grokster enables are not crimes that we should care about.

RendeR

06-08-2005, 10:07 AM

Ok, look at it this way folks:

Grokster allows users to connect to one another to share files.

FTP allows users to connect to each other to share files.

HTTP allows users to connect to each other and share files.

IF you dissallow the technology for one, you must dissallow it for all.

Stopping grokster isn't going to stop file sharing, its simply going to slow it down as people use whatever means necessary to find the files they want.

if you want to protect something you have to develop a means of protecting the product itself. The record and movie companies aren't willing to put forth the huge financial requirements to develop a truly working solution so they go after the means by which people share their files. This, I feel, is wrong and they should be bitch slapped for being lazy and greedy.

Blackadar

06-08-2005, 10:07 AM

I guess my point was that if to argue that Grokster is law-abiding, you almost have to believe that the crimes Grokster enables are not crimes that we should care about.

False analogy. You have to believe that the file-sharing copyright infringement committed by using Grokster or other file-sharing programs does not outweigh the doctrine of Fair Use, other benefical effects of file-sharing software AND the potential impact on software and product liability as a whole.

Essentially, you're weighing factors - does the file-sharing software have other material uses beyond illegal file sharing? That's where lost "real" revenue is a factor (at least for me) vs. number of copyright infringements. Clearly, the majority of file-sharing traffic illegal. But if 90% of that would never result in any actual losses to the media companies, then the damage done probably doesn't outweigh the good uses of file-sharing software as a whole.

st.cronin

06-08-2005, 10:12 AM

I understand the argument you're making blackie ... but it's a different question then what I'm trying to answer. If you DO believe the illegal file stealing is a crime society should be concerned about, then we (society) must come up with a solution. I don't understand what that solution is supposed to be. Punishment of people caught using Grokster illegally? Well, how do we catch them? And what is an appropriate punishment?

Blackadar

06-08-2005, 10:17 AM

st.cronin

06-08-2005, 10:21 AM

Ok, I said I'd come back and give it some thought.

And before I start, let me say that nothing will prevent all illegal file sharing. Just like nothing has prevented games from being copied, bootlegs from being made and the like. The cat's been out of the bag for many, manyyears. It's a matter of minimizing the impact. I think it's a 5-pronged approach in order to do so.

1) Technological Advancement, 2) Education, 3) Updating Laws, 4) Lawsuits and 5) Changing Business Practices.

1. Technological - Technological advancements like Digital Watermarks, encryption and the like. And I know that whatever is made can be hacked. That's not the goal. It's to make it inconvenient and/or risky enough to not be worth the trouble. Create new media types that are in demand. Create new technologies along with these media types. It's like erecting a chain-link fence - you want to keep the honest man out. I'd even advocate creating an imbedded "call home" signal so that it's easier to pinpoint illegal files.

2. Education - I think it's a matter of keeping people - especially kids and their parents - aware of the dangers (viruses), penalities (fines) and alternatives to file sharing. Much like MADD helped with Drunk Driving, this type of education is invaluable. Just look at this board - many of us have been file-sharers at one point and I'd bet many of us have stopped.

3. Updating Laws - the Copyright laws and the penalities associated with them should be changed. I'm not advocating jail time for file-sharers - that's absurd, given the type of crime and the cost to society to lock people up - but let's make it easier to enforce the laws AND tailor them so that they are enforcable.

4. Lawsuits - This is the industries' stick. And yes, as the holder of intellectual property, you are the one primarily responsible for protecting it. It has always been that way. Let the suits continue. The record industry made a mess of the original ones, trying to get summary judgments against John Does and thinking they had supoena power. They have to follow the laws and leave this threat out thee.

5. Changing Business Model - much of what the music industry has done has been counter-productive. Their business model changed and they failed to change with it. They liked their protected (and in many cases, colusional and illegal) system for distribution of content. Well, that's gone. Continue to provide alternatives for digital distribution, which is far cheaper. Provide incentives for those who purchase in the brick-and-motar stores with items not available digitally. By embracing the digital world, they will have better control over it. Many people copied music simply because it was the easiest way to obtain it digitally. There really wasn't any other way. And instead of adapting, the music industry stuck their heads up their asses and screamed at Congress.

Taken as a whole, this is a framework for how to prevent the vast majority of illegal file-sharing. The other thing is to finally recoginze the true economic impact of the problem. All illegal file-sharing is bad, but only some small part of it truly costs an organization direct income. If I downloaded a song by Jon Bon Jovi today, it's bad and illegal. But it's not a direct income cost because I would have never purchased it anyway. That doesn't mean it's right - don't mistake my point - but it's not money out of someone's pocket. It is if I would have purchased it or I share it with someone else who would have. I believe that once the true economics of file sharing are better understood - without all the hyperbole and positioning - media companies will be better able to focus their efforts to maximize their returns from these efforts.

Missed this post originally, sorry Black. Will read and digest and possibly excrete a reply later.

MrBigglesworth

06-08-2005, 11:45 AM

If you DO believe the illegal file stealing is a crime society should be concerned about, then we (society) must come up with a solution.
I agree with this. But my condensed point is that I don't think file sharing has had anything but positive effects on society so far, so regulation of it is kind of counter-productive.

Drake

06-08-2005, 12:21 PM

Clearly, the majority of file-sharing traffic illegal. But if 90% of that would never result in any actual losses to the media companies, then the damage done probably doesn't outweigh the good uses of file-sharing software as a whole.

Whoa. Are you suggesting that 90% of the stuff being downloaded via file-sharing networks is stuff that people would never have paid for in the first place? That people download tons of shit that they really don't want just because it's out there? I'd find that hard to believe (or maybe I'm just misreading your claim).

Understand that I've never used file-sharing software, so I'm not sure what goes on there, but from the things I've heard the kids at the university I work at say about file sharing seems to point to this: They download stuff they would have purchased if they had money to spare, but since they'd rather spend their money on other things than recorded entertainment, they'll download it so they get it for free.

I don't honestly have a problem with file sharing. The articles I've read seem to indicate that artists and IP creators actually benefit long-term from file sharing, though the distribution networks may suffer. What I do have a problem with is this flawed consumer logic that essentially says "I want to spend my money on other things, but I'd like to have this too, so I'll just steal this IP product because I can get it for free". It doesn't bug me because of the "theft" of Intellectual Property (which may or may not actually hurt the content creator--I don't care); it bugs me because it's teaching our kids that they don't have to balance their wants with their resources.

And besides, do you have any idea how many crap albums I had to buy in the '80's to get one decent song? I'm still pissed off about that stupid Sheriff album I bought in '89 because the Prom theme was on it. I'm more than willing to make a whole new generation of kids suffer because of it.

Mr. Wednesday

06-08-2005, 12:25 PM

Drake

06-08-2005, 12:29 PM

Hmm. So people want entertainment, but they're no longer willing to pay for it...is that what this is really all about?

Blackadar

06-08-2005, 12:31 PM

Drake

06-08-2005, 01:01 PM

Daimyo

06-08-2005, 01:05 PM

I don't think 90% is an absurd number at all... think of all the people with 10,000 songs on their ipods... I doubt many would have invested $10,000 for that music but I imagine $500-$1000 is reasonable (considering a lot of them had 10-20 years to accumulate the music). Had they been unable to obtain the music illegally I imagine they'd just have <1,000 songs instead of the 10,000 they have now.

(Usual disclaimer applies... doesn't apply to everyone... I'm sure there are people with 100% legal music on their ipods, etc, etc, yada, yada)

Daimyo

06-08-2005, 01:07 PM

QuikSand

06-08-2005, 01:14 PM

Whoa. Are you suggesting that 90% of the stuff being downloaded via file-sharing networks is stuff that people would never have paid for in the first place? That people download tons of shit that they really don't want just because it's out there? I'd find that hard to believe (or maybe I'm just misreading your claim).

Understand that I've never used file-sharing software, so I'm not sure what goes on there, but from the things I've heard the kids at the university I work at say about file sharing seems to point to this: They download stuff they would have purchased if they had money to spare, but since they'd rather spend their money on other things than recorded entertainment, they'll download it so they get it for free.

I don't honestly have a problem with file sharing. The articles I've read seem to indicate that artists and IP creators actually benefit long-term from file sharing, though the distribution networks may suffer. What I do have a problem with is this flawed consumer logic that essentially says "I want to spend my money on other things, but I'd like to have this too, so I'll just steal this IP product because I can get it for free". It doesn't bug me because of the "theft" of Intellectual Property (which may or may not actually hurt the content creator--I don't care); it bugs me because it's teaching our kids that they don't have to balance their wants with their resources.

And besides, do you have any idea how many crap albums I had to buy in the '80's to get one decent song? I'm still pissed off about that stupid Sheriff album I bought in '89 because the Prom theme was on it. I'm more than willing to make a whole new generation of kids suffer because of it.

From time to time, every so often, reading these political threads at FOFC is actually worth the time required.

Thanks.

Drake

06-08-2005, 01:20 PM

DOLA, I don't support theft of IP, but I also don't support a technology witchhunt as a substitute for punishing the people actually breaking the law. Making p2p technology illegal would be a pretty stupid move IMO.

That's what I actually wanted to say, so I've copied and pasted this post into a text file on my PC where I can keep it forever and call it mine. :D

Blackadar

06-08-2005, 01:21 PM

Eh, I'll accept 90% or whatever, but given my anecdotal evidence, I'll still read "wouldn't have paid for it" as "would have paid for it if I had unlimited stockpiles of cash, but since I don't, I'll just take it because no one can stop me". I find that attitude problematic.

Now, whether file sharing benefits or hurts IP creators is really a different issue. At some point, if you damage the distribution network, you damage the IP creator, because the IP creator depends on the distribution network to get content to the vast majority of consumers who don't use file sharing services. If distributors/publishers have less capital to spend on IP content, they stable fewer IP creators, which means that the creators of content have to work independently or part-time, which means decreased productivity over time. (Frex: I could have written two or three more novels last year if I didn't have this pesky 50-hour a week job to eat into my spare time, but since the bills have to be paid, I don't have much choice.)

Somehow, somebody telling me that they want my IP content that I gave up family time for, but only if they can get it for free is a little galling. I'd rather have them say up front that they're just not interested. Maybe that's just me, though.

Note that I am not arguing that file sharing doesn't benefit or hurt creators. Actually, I am saying there are damages - therefore, there is hurt. I wouldn't go so far as to say that file-sharing is a benefit. That there is *some* evidence to support that position should give everyone pause.

What I am saying is that the economic impact of those damages are not easily measured and that they are far less than the total sum of the retail value of all the files being shared. And the value of the economic impact is very important when considering a case like this as you're weighing the negative impact vs. the legitimate uses of the technology.

Arctus

06-08-2005, 01:40 PM

I agree with this. But my condensed point is that I don't think file sharing has had anything but positive effects on society so far, so regulation of it is kind of counter-productive.

I fail to see how wholesale free distribution of copywrited music has had any meaningful impact to society. I've never read or seen anything in the news discussing the detrimental societal impacts caused by those in poverty not being able to download music from their high speed internet connection. As a matter of fact, I'm sure that there are plenty of people that still believe widespread exposure of our children to certain artists (the children!!!!! think of the children!!!!) would be detrimental to society.

Using this logic, I guess its also OK to shoplift from book and record stores. The books and CD's are already printed, so there really is no additional cost involved.

I do believe that there is positive value to society in being able to access certain media (namely books) for free. I guess that is why we have libraries.

I believe that if I substitute the word "me" for "society" in your post, I have a better understanding of where you are really coming from.

MrBigglesworth

06-08-2005, 02:00 PM

I fail to see how wholesale free distribution of copywrited music has had any meaningful impact to society.
Bob used to be able to listen to 10 songs that he likes per year because he only wanted to spend $150 on CD's per year. Bob is now able to listen to 1,000 songs that he likes, and spend $150 on concerts. That's about as obvious a benefit as there can be.

Using this logic, I guess its also OK to shoplift from book and record stores. The books and CD's are already printed, so there really is no additional cost involved.
We discussed this blatant fallacy about 2 or 3 pages ago. Please go read John Galt's post on the difference between IP and real property to catch you up on the discussion.

I believe that if I substitute the word "me" for "society" in your post, I have a better understanding of where you are really coming from.
I have benefitted from file-sharing. Every person that I know that is my age and younger has (which just goes to show (1) the pervasiveness of the techonology and the benefits it brings and (2) that even with it being so pervasive, consumers still have not lost any benefits). But your ad hominem attack does nothing to change the underlying logic of the position.

Arles

06-08-2005, 02:07 PM

Note that I am not arguing that file sharing doesn't benefit or hurt creators. Actually, I am saying there are damages - therefore, there is hurt. I wouldn't go so far as to say that file-sharing is a benefit. That there is *some* evidence to support that position should give everyone pause.

What I am saying is that the economic impact of those damages are not easily measured and that they are far less than the total sum of the retail value of all the files being shared. And the value of the economic impact is very important when considering a case like this as you're weighing the negative impact vs. the legitimate uses of the technology.
I think that blaming the technology (file sharing) for illegal distribution may be a bit harsh. As long as the creaters are not supporting or enabling the distribution, I guess the only way to handle the infractions are to go after direct violators.

But, I'm beginning to agree with BA's point on not blaming it all on the technology.

Arctus

06-08-2005, 02:14 PM

Bob used to be able to listen to 10 songs that he likes per year because he only wanted to spend $150 on CD's per year. Bob is now able to listen to 1,000 songs that he likes, and spend $150 on concerts. That's about as obvious a benefit as there can be.

This is absolutely a benefit.......to Bob, not to society as a whole. Hell, lets get a real estate company to give Bob a nice house with a scenic overlook. Bob used to live (and pay an $1000 mortgage on) in a two bedroom rancher next to the landfill. Bob is now able to live in a beautiful home in paradise, because for the same $1000 a month he can pay the taxes on his property.
All you are justifying is an excuse for people to live beyond their economic means.

We discussed this blatant fallacy about 2 or 3 pages ago. Please go read John Galt's post on the difference between IP and real property to catch you up on the discussion.

umm....the ideas in books are intellectual property. Their value is in their content, not in the physical paper, cardboard and ink.

I have benefitted from file-sharing. Every person that I know that is my age and younger has (which just goes to show (1) the pervasiveness of the techonology and the benefits it brings and (2) that even with it being so pervasive, consumers still have not lost any benefits). But your ad hominem attack does nothing to change the underlying logic of the position.

Now we're getting around the circle to the "culture of entitlement" point JonInMiddleGA brought up earlier.

MrBigglesworth

06-08-2005, 02:56 PM

This is absolutely a benefit.......to Bob, not to society as a whole. Hell, lets get a real estate company to give Bob a nice house with a scenic overlook. Bob used to live (and pay an $1000 mortgage on) in a two bedroom rancher next to the landfill. Bob is now able to live in a beautiful home in paradise, because for the same $1000 a month he can pay the taxes on his property.
All you are justifying is an excuse for people to live beyond their economic means.
Again, I do not think you get the point. The transaction you describe is not a Pareto Optimal exchange: the real estate company ends up worse off than they were before. There is a winner and a loser, so there is no net benefit to society.

umm....the ideas in books are intellectual property. Their value is in their content, not in the physical paper, cardboard and ink.
Nobody is stealing CD's, which are tangible goods and real property. The same deals with books.

Now we're getting around the circle to the "culture of entitlement" point JonInMiddleGA brought up earlier.
Progress does not equate to entitlement. We are moving towards a more streamlined music distribution process, which will lower the cost for music consumption, just like nearly every other industry which over time brings either higher quality or lower prices or both.

sterlingice

06-08-2005, 03:51 PM

Nobody is stealing CD's, which are tangible goods and real property. The same deals with books.
Ok, so how about someone leaves $1 in the store for the $15 CD they "buy" because the cost of the actual printing and pressing of the CD and materials is probably less than $1 when mass produced? When you buy a CD or game or, hell, NFL-licensed t-shirt, you're not paying $15, $50, and $20 for the actual item- you're paying it for the IP represented within.

SI

Arctus

06-08-2005, 03:55 PM

Again, I do not think you get the point. The transaction you describe is not a Pareto Optimal exchange: the real estate company ends up worse off than they were before. There is a winner and a loser, so there is no net benefit to society.

Taken from economic.about.com:

Definition: In an endowment economy, an allocation of goods to agents is Pareto Optimal if no other allocation of the same goods would be preferred (emphasis mine) by every (e.m.) agent. Pareto optimal is sometimes abbreviated as PO.

The transaction you decribe is not parento optimal either. Certainly the people that put dinner on the table by selling music do not prefer the system you are advocating. I also question if we are "an endowment economy" but I'll leave that to someone that knows more about economics than I do.

Nobody is stealing CD's, which are tangible goods and real property. The same deals with books.

If music CD's full value is as "real property" why can I buy 100 blank ones for the same price as two with music on them? Why is the music on the CD's copywrited?

Progress does not equate to entitlement.

agreed

We are moving towards a more streamlined music distribution process, which will lower the cost for music consumption, just like nearly every other industry which over time brings either higher quality or lower prices or both.

Yeah, the distribution is getting more streamlined; this could end up reducing costs, but the music industry will never be obligated to allow you to gain access to their intellectual property for free. If the Supremes rule in favor of Grokster, the music industry will most likely suck it up and introduce technology (probably e-licences) that will hinder our ability to make reasonable copies for personal use.

sterlingice

06-08-2005, 04:05 PM

I think that blaming the technology (file sharing) for illegal distribution may be a bit harsh. As long as the creaters are not supporting or enabling the distribution, I guess the only way to handle the infractions are to go after direct violators.

But, I'm beginning to agree with BA's point on not blaming it all on the technology.
No one says filesharing technology in and of itself is bad. It's like saying "people in other countries hate us because we have freedom"- it's just plain stupid and nonsensical. There's still the distinction that Mojo Jojo brought up. Grokster and others have willfully set up their systems in such a way that they don't have the liability of having to police themselves- proving this in a court of law will be another matter.

In the end, it's not the technology that's the problem but the illegal stuff trafficked on there. However, these programmers are deliberately setting up systems where it is near impossible to police the networks. Can we all agree that in the end, the ideal way to solve this is let the technology exist but only let stuff that's legit on the networks? Anyone not wanting this goal is just not worth arguing with because then we *are* just talking about people who want to steal stuff.

SI

Blackadar

06-08-2005, 04:11 PM

In the end, it's not the technology that's the problem but the illegal stuff trafficked on there. However, these programmers are deliberately setting up systems where it is near impossible to police the networks. Can we all agree that in the end, the ideal way to solve this is let the technology exist but only let stuff that's legit on the networks? Anyone not wanting this goal is just not worth arguing with because then we *are* just talking about people who want to steal stuff.

SI

I'll ignore your last sentence because I think it's overly general and unnecessary.

As for policing these networks, it brings a whole host of security, personal privacy and expense issues to the forefront. It would be nice if things were that simple, but they're not. It's simply not that easy to track and distinguish files that are illegal vs. legal. Some sharing of copyrighted material is legal - how do you distinguish that sharing from illegal sharing? Not to mention we're not talking about any central server with these files or indexes. We're talking true cyberspace - it's like trying to catch smoke.

Napster is rulled illegal, so now comes Aimster. Aimster is threatened with a lawsuit, so now comes Grokster. With Morpheus and Kazaa waiting in the wings, not to mention Bittorrent and a whole host of others.

It's ok to want that goal, but it's like wanting world peace or an end to hunger. It's just not that easy - or simple.

Daimyo

06-08-2005, 04:22 PM

In the end, it's not the technology that's the problem but the illegal stuff trafficked on there. However, these programmers are deliberately setting up systems where it is near impossible to police the networks. Can we all agree that in the end, the ideal way to solve this is let the technology exist but only let stuff that's legit on the networks? Anyone not wanting this goal is just not worth arguing with because then we *are* just talking about people who want to steal stuff.

SI
In the end something like that will likely be the ideal solution. I think its reasonable to expect companies developing p2p software or networks to make some best effort to make it possible to regulate or police those networks.

I think you could make a pretty good argument that Grokster, et al, aren't based on distributed model just to shirk that responsibility, but are distributed because it is a much more efficient model from a technology standpoint and was the natural evolution of the technology used by Napster. In that case is it worth forcing them to shift to a less efficient model to get the controls needed to police piracy? I think probably so... I'm all for regulation where its warranted. We force companies to be less efficient all the time to serve the greater good (gun control laws, environmental protections, worker safety, etc, etc)

Drake

06-08-2005, 04:25 PM

Illegal file sharing is like fucking another man's wife -- he doesn't lose use of said item, so it hasn't cost him anything concrete. Said item's inherent value is in no way diminished by how many times it may have been shared in the past (or in the future). But if he catches you doing it, you should still expect to get your ass beat.

:D

st.cronin

06-08-2005, 04:43 PM

I think the problem is calling it 'illegal file-sharing.' It's a pussy name for a crime, makes it sound like no big deal so you have all sorts of idiots trying to justify it. I'm only partly joking.

sterlingice

06-08-2005, 04:49 PM

I think the problem is calling it 'illegal file-sharing.' It's a pussy name for a crime, makes it sound like no big deal so you have all sorts of idiots trying to justify it. I'm only partly joking.
There is a lot to be said for branding something. I can just see the new RIAA campaign: "Are you involved in computer rape?"

SI

Blackadar

06-08-2005, 05:01 PM

MrBigglesworth

06-08-2005, 05:05 PM

Taken from economic.about.com:

Definition: In an endowment economy, an allocation of goods to agents is Pareto Optimal if no other allocation of the same goods would be preferred (emphasis mine) by every (e.m.) agent. Pareto optimal is sometimes abbreviated as PO.

The transaction you decribe is not parento optimal either. Certainly the people that put dinner on the table by selling music do not prefer the system you are advocating. I also question if we are "an endowment economy" but I'll leave that to someone that knows more about economics than I do.Yeah, the distribution is getting more streamlined; this could end up reducing costs, but the music industry will never be obligated to allow you to gain access to their intellectual property for free.
You are interpreting the definition wrong. Say that there are two outcomes:

1) Bob does not buy the CD, Bob does not download the song, RIAA does not get $15
2) Bob does not buy the CD, Bob downloads the song, RIAA does not get $15.

Those are the only two possibilities, because we are assuming that Bob will never spend money for the song he wants to hear. Out of those two, Bob will prefer (2). If the RIAA were rational entity, they would prefer either outcome, as it doesn't effect them (actually if they were a rational entity, they would prefer (2) as well because the more exposure the better).

Yeah, the distribution is getting more streamlined; this could end up reducing costs, but the music industry will never be obligated to allow you to gain access to their intellectual property for free.
Again, IP laws are designed to maximize the value to the consumer, not to maximize the profit for the creator or the distributor. Most if not all big time musicians would still make music if they made $200,000 a year instead of $2 million, and the case could be made that they would make more music if there wasn't so much money (think Jay-Z).

sterlingice

06-08-2005, 05:18 PM

You are interpreting the definition wrong. Say that there are two outcomes:

1) Bob does not buy the CD, Bob does not download the song, RIAA does not get $15
2) Bob does not buy the CD, Bob downloads the song, RIAA does not get $15.

Those are the only two possibilities, because we are assuming that Bob will never spend money for the song he wants to hear. Out of those two, Bob will prefer (2). If the RIAA were rational entity, they would prefer either outcome, as it doesn't effect them (actually if they were a rational entity, they would prefer (2) as well because the more exposure the better). Problem is- this example doesn't exist in a vacuum and you were using it as such in the case that he was responding to. So to continue along that path, there are more than just two outcomes.

along with
3) Bob saves $15 and spends it going to a concert

there's
4) Bob could have bought the album but decides to save his $15, spend them on cheese doodles, and download the album

It becomes even more complicated in a society where lots of diverse people have to live under the same rule. It's kindof like when my parents gave me a curfew after I never had one because my sister was staying out late- not because I was wreckless and irresponsible but because she lives in the same house and everyone in the house has to live by the same rules (ie "but he has a curfew and I don't" protests).
5) Bob's not going to buy the music either way. But Tom sees that there is a way to save a lot of money by pirating music so that *is* money lost that would have otherwise been had by RIAA.

SI

st.cronin

06-08-2005, 05:21 PM

I know of people, as well, who download and burn dozens of cds worth of songs, who then give them to non-tech savvy friends and family members. It's really stupid to suggest that file-stealing has zero economic effect on the music industry.

Drake

06-08-2005, 05:25 PM

Again, IP laws are designed to maximize the value to the consumer, not to maximize the profit for the creator or the distributor.

Which IP laws are you talking about? Copyright laws are designed to protect the rights of the creator against infringement. If I create content, I have the right to control how and when it is distributed. Most content creators tend to go with leasing those rights to publishers/distributors for a fee and a royalty percentage of the returns, but we still choose which rights we're giving to whom. Anyone who does something else with that content without having been given permission is infringing my rights.

Now, again, I'm not arguing whether or not that infringement is potentially beneficial, but the laws are desnigned to protect the rights of the infringer to get free shit, but to protect the content creator's rights to define what is authorized duplication of his/her intellectual property and who is authorized to do the copying and distribution.

(That said, I think the current copyright period of "author's life + 70 years" before the content becomes public domain is a bit excessive and outside the Constitutional intention for promoting the arts. I'd like to see a straight "author's life" and let his estate fend for itself. But that's all beside the point.)

MrBigglesworth

06-08-2005, 09:37 PM

Problem is- this example doesn't exist in a vacuum and you were using it as such in the case that he was responding to. So to continue along that path, there are more than just two outcomes.

along with
3) Bob saves $15 and spends it going to a concert

there's
4) Bob could have bought the album but decides to save his $15, spend them on cheese doodles, and download the album

It becomes even more complicated in a society where lots of diverse people have to live under the same rule. It's kindof like when my parents gave me a curfew after I never had one because my sister was staying out late- not because I was wreckless and irresponsible but because she lives in the same house and everyone in the house has to live by the same rules (ie "but he has a curfew and I don't" protests).
5) Bob's not going to buy the music either way. But Tom sees that there is a way to save a lot of money by pirating music so that *is* money lost that would have otherwise been had by RIAA.

SI
My contention was never that ALL file-sharing was PO, just a vast majority of it. I think that is obvious when you see that music is still raking in a huge amount of money. It's just something that needs to be considered in the whole calculus of the thing. We could make it so that file-sharers got the death penalty, and that would cut down on nearly all file-sharing, but not only would that be draconian, but also have a severe negative social effect, when IP laws are designed to create the most benefit for the consumer.

MrBigglesworth

06-08-2005, 09:44 PM

Which IP laws are you talking about?
The laws the Congress passes according to the Constitution:
Clause 8: (The Congress shall have Power) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The purpose is to 'promote the Progress of Science and useful Arts', not 'create the most profit for artists'. Having people profit from their works is a means to and end (greater progress and diversity), not an end in and of itself. If the laws are not promoting progress, they are really no longer serving their purpose.

Drake

06-08-2005, 11:11 PM

I, and traditionally the Courts, would read Clause 8 as a protection for (i.e. an "exclusive right") the IP creator. I see no reference to consumers. The advancement of Science and the Arts is a benefit to society, but those benefits can be intangible--an increased standard of living or the ongoing ability to compete in the global economy due to technological advancement--not aimed at any sort of direct consumer benefit. Certainly, taking things from the IP creator that the creator is attempting to sell at a profit infringes on their guaranteed "exclusive right" at the least.

It seems pretty clear to me that this is where our views diverge. I see Clause 8 as an attempt by the Founding Fathers to create a culture that promotes scientific and artistic development rooted in the idea that individuals will be more productive (and more beneficial to society over time) if given the opportunity to pursue their labors in a way that allows them to make a reasonable living. You seem to read it as content providers having an obligation to provide goods and services to consumers in such a way that the enjoyment of those services and goods won't prove too onerous. I can't say that I've ever thought of it that way before, but if that *was* the original intention of the Founding Fathers, they should have made a provision for the creation an artisan class that would financially supported by the government. In the absence of a clause like that, I have to conclude that they meant something else.

Bottom line is that yes, IP creators will continue to create content even without financial remuneration and security, but the difference is that in most cases, you'll never know it because they'll leave the novels in their desk drawers, the music in their local clubs and their inventions packed away in their workshops. Clause 8 offers an incentive (i.e. protection, security, an opportunity to make a buck) to share those creations with the community.

It sounds like our views are fundamentally opposed, so there's probably not much point in discussing this any more, but I'd like to stress one more time that when it comes to the implementation of Clause 8 with regards to file sharing and low-cost distribution networks, I don't think we disagree. I'm hoping Grokster wins because it's an important technology that needs to grow. I'm hoping that it also forces the entertainment industries to recognize that they're dinosaurs whose current distribution model is outmoded and supported by special interest lobbying rather than true economic viability. I also think that we need to take a fresh look at corporate profit structures when it comes to nurturing IP creation -- because the current insistence that *everything* has to be profitable right away or they're not going to take a chance on new artists, writers, musicians is killing the creative edge in this country. If you want to see how this sort of thing can be done, do a Google search on Cory Doctorow and see the novel approach he's taken to distributing his novels. Essentially, he makes all of his books available for free on the net simultaneous with their release from his publisher, and he's having incredible success. It's an exciting business model. I notice that U2 did essentially the same thing with _How to Build an Atomic Bomb_, which is an encouraging sign, but I wonder if it works better with books (and computer code) than it does with music. Book buying seems to be one of those things where if people can get it free on the net and they like it, they'll feel compelled to get a real copy for their library. I'm not yet convinced that the model works quite as well for music, especially with the development of the iPod, rendering the storage device media (CD's, cassettes, etc) essentially obsolete.

Anyway, it's been an interesting discussion Mr. B. Thanks for having it with me.

Bearcat729

06-23-2005, 09:58 AM

Supreme Court Rules Cities May Seize Homes

By HOPE YEN, Associated Press Writer
6 minutes ago

WASHINGTON - A divided Supreme Court ruled that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth conflicts with individual property rights.
ADVERTISEMENT

Thursday's 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue," Justice
John Paul Stevenswrote for the majority.

He was joined by Justice
Anthony Kennedy, David H. Souter,
Ruth Bader Ginsburg and Stephen G. Breyer.

At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use."

Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.

New London officials countered that the private development plans served a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted.

Justice
Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices
Antonin Scaliaand
Clarence Thomas.

Nationwide, more than 10,000 properties were threatened or condemned in recent years, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs.

The New London neighborhood that will be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families. Among the New London residents in the case is a couple in their 80s who have lived in the same home for more than 50 years.

City officials envision a commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.

New London was backed in its appeal by the National League of Cities, which argued that a city's eminent domain power was critical to spurring urban renewal with development projects such Baltimore's Inner Harbor and Kansas City's Kansas Speedway.

Under the ruling, residents still will be entitled to "just compensation" for their homes as provided under the Fifth Amendment. However, Kelo and the other homeowners had refused to move at any price, calling it an unjustified taking of their property.

The case is Kelo et al v. City of New London, 04-108.

http://news.yahoo.com/s/ap/20050623/ap_on_go_su_co/scotus_seizing_property;_ylt=AioRCP69JHJVaZFUwUis79Os0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--

Klinglerware

06-23-2005, 10:00 AM

The irony is that New London's economy is going to tank now that they are probably going to close the submarine base...

Peregrine

06-23-2005, 10:01 AM

I really can't believe this verdict, I mean government has had eminent domain rights but being able to use them so they can give your house to a stripmall or casino developer? Sickening.

Wolfpack

06-23-2005, 10:03 AM

Those bastard conservatives! Oh, wait....

Farrah Whitworth-Rahn

06-23-2005, 10:13 AM

Dammit. I don't agree with this decision AT ALL.

Chubby

06-23-2005, 10:15 AM

stupid decision, i totally agree with the dissent

Farrah Whitworth-Rahn

06-23-2005, 10:19 AM

Can any of you lawyerly types point me to where I can find the whole text of the decision? My usual places don't have it yet, and my Lexis subscription is limited to tax cases.

Thank ye kindly.

albionmoonlight

06-23-2005, 10:30 AM

Can any of you lawyerly types point me to where I can find the whole text of the decision? My usual places don't have it yet, and my Lexis subscription is limited to tax cases.

Thank ye kindly.
Does not seem to be up on general LEXIS, yet.

If you PM me your email address, I can send you a copy of it when it is on general LEXIS (although by that point you may have found it already).

Blackadar

06-23-2005, 10:31 AM

Another shitty Supreme's decision. Where did these guys learn the Constitution?

albionmoonlight

06-23-2005, 10:33 AM

actually--never mind about the pm. You can get a link to the decisions via

http://legalaffairs.org/howappealing/

You and Arlie may like this blog. I know that he has shown an interest in appellate law generally.

John Galt

06-23-2005, 10:34 AM

You can find the opinion from this link:

http://straylight.law.cornell.edu/supct/index.html

Farrah Whitworth-Rahn

06-23-2005, 10:39 AM

Albion, John - thanks to you both. I've printed the opinions and the dissents and am looking forward to spending some time reading them.

Man I need a life. Did I just say I was looking forward to reading an opinion? :D

flere-imsaho

06-23-2005, 10:42 AM

An issue on which I agreed with Justices Rheinquist, O'Connor, Scalia & Thomas. What is the world coming to?

Blackadar

06-23-2005, 10:43 AM

An issue on which I agreed with Justices Rheinquist, O'Connor, Scalia & Thomas. What is the world coming to?

As did I.

DOGS AND CATS, SLEEPING TOGETHER
MASS HYSTERIA

KevinNU7

06-23-2005, 10:50 AM

You can find the opinion from this link:

http://straylight.law.cornell.edu/supct/index.html
for a shortcut - http://straylight.law.cornell.edu/supct/html/04-108.ZS.html

Farrah Whitworth-Rahn

06-23-2005, 11:16 AM

The papers out here are saying that O'Connor will be teaching a summer course at the U of A Law School this year. I wonder if she's going to discuss this case.

sterlingice

06-23-2005, 11:49 AM

An issue on which I agreed with Justices Rheinquist, O'Connor, Scalia & Thomas. What is the world coming to?
Ditto. I'm scared.

SI

Easy Mac

06-23-2005, 11:56 AM

Farrah Whitworth-Rahn

06-23-2005, 12:03 PM

I don't necessarily think its a bad decision as much as its use will be bad. I'm listening to whoever is filling in for Rush talking about athiests forcing churches to pay taxes... whatever. However, its not like they went against the constitution with their decision. the constitution:

"nor shall private property be taken for public use, without just compensation."

Now obviously, the key is just compensation. What designates just compensation/ The logic would dictate that just compensation is the current market rate for the property. So in other words, if the government gives you whatever they get for the property, then thats that, its their perogative. However, if they give you under the going rate, then obviously its an abuse. So while I don't think the decision itself is bad or unconstitutional, I definitely think the uses of the decision will be used adversely.

Does that make sense? But Mac you need to remember that the same people who are moving to take the land are also the same people who define what "just compensation" is, and are the same people who benefit from the taking when conveyed after condemnation. Seems like a huge conflict of interest to me.

There have been instances where land has been re-zoned by the planning commission prior to condemination proceedings. The property was re-zoned for a different use, and the fair market value plummetted. The city then swept in and offered the new fair market value as "just compensation" under threat of condemnation.

How fair is that?

EDIT: for clarification

Glengoyne

06-23-2005, 12:04 PM

As did I.

DOGS AND CATS, SLEEPING TOGETHER
MASS HYSTERIA
Ditto.

flere-imsaho

06-23-2005, 12:05 PM

DOGS AND CATS, SLEEPING TOGETHER
MASS HYSTERIA

I know. I feel kinda dirty.... :eek:

Crapshoot

06-23-2005, 12:06 PM

Horrible horrible decision - especially the de facto expansion of federal rights here. Essentialy, they not only okayed your land being seized by the government, but your land being seized by Joe "property developer" - which is fucking ridiculous. O Conner's dissent is fairly representative of what I feel.

Easy Mac

06-23-2005, 12:13 PM

But Mac you need to remember that the same people who are moving to take the land are also the same people who define what "just compensation" is. Seems like a huge conflict of interest to me.

There have been instances where land has been re-zoned by the planning commission prior to condemination proceedings. The property was re-zoned for a different use, and the fair market value plummetted. The city then swept in and offered the new fair market value as "just compensation" under threat of condemnation.

How fair is that?
Since when has the law been about fairness? Is it fair to restrict gun use because a person shot somebody? What you're describing is an exception to the rule, and one that should be solved through the court systems on its own merits. Did they have a contract with the city saying it would be zoned for X? Did the city break the contract? It should be a clear cut case if thats what happened. If not, then that sucks. You don't argue that the fair market value is incorrect, just that it changed. Sorry, I'd talk more, but not right now, maybe later tonight.

Arles

06-23-2005, 12:17 PM

albionmoonlight

06-23-2005, 12:22 PM

Ugh, awful decision. Everyone better hope they don't own land near a proposed freeway or major construction. As Farrah stated, the gov't is likely to try and devalue your land by tearing up everything around it and making a "fair" offer that will be borderline insulting given the value prior to the government's intervention.

Now, there's no need to wait for all parties to consent before building. Simply go ahead and build knowing you will eventually be able to buy someone's land - once the value gets reduced by the pile of rubble around it.
I'm going to read the decision this afternoon. I don't know if it was right or wrong as a legal matter. But one thing that I have noticed is that most people are against it as a policy matter--both liberal and conservative.

While I doubt that there will be enough momentum behind it, I wonder if this is one of those issues where there might be enough support for a constitutional amendment. I think that you may be able to get 2/3 of Congress and 3/4 of the states to agree to limit the power of eminent domain to actual public use and not to public purpose.

Blackadar

06-23-2005, 12:26 PM

I don't necessarily think its a bad decision as much as its use will be bad. I'm listening to whoever is filling in for Rush talking about athiests forcing churches to pay taxes... whatever. However, its not like they went against the constitution with their decision. the constitution:

"nor shall private property be taken for public use, without just compensation."

Now obviously, the key is just compensation. What designates just compensation/ The logic would dictate that just compensation is the current market rate for the property. So in other words, if the government gives you whatever they get for the property, then thats that, its their perogative. However, if they give you under the going rate, then obviously its an abuse. So while I don't think the decision itself is bad or unconstitutional, I definitely think the uses of the decision will be used adversely.

Does that make sense?

I highly disagree with this for two reasons.

1. Constitutional - The clause is for "public use". That means to be used by the public and for the public. Not to turn it over to another private party. The Supremes need reading comprehension classes on this one.

2. Moral - this ruling is awful. As O'Connor noted, we all don't have the same access in the political process. So a big developer can get the city/county/state to begin eminent domain proceedings against your home. This forces you to deal with the emotional/financial/social impacts of being forced to move. While they compensate you on the property (supposedly), they don't compensate for the other impacts. Just so they can then plop down a bigger house on the same piece of property.

Essentially, even when you own a piece of land, you're just renting it now. It is simply a HORRID ruling, and one I'd like to see some of the majority decision makers get shot in the head over (yes, I feel that strongly).

Surtt

06-23-2005, 12:26 PM

"nor shall private property be taken for public use, without just compensation."

The land isn't being taken for public use.
It is being taken for private enterprise.

ISiddiqui

06-23-2005, 12:27 PM

Everyone better hope they don't own land near a proposed freeway or major construction.
Um... :confused:

That was ALREADY something the federal government could have done before this decision. If the government needed land for a freeway in 2005, 1995, 1985, 1975, etc, they could take your home and build the freeway. It's hard to argue that isn't public use.

THIS case is about taking your land for public use, when that public use is to benefit a private party. Such as taking your home so that a casino can be built or something.

The key phrasing that the case turns on is 'public use'. It can surely be argued that increased tax revenues and increasing tourism and whatnot can be public use... but that's a very broad reading of it. It can also be read that public use is only when the government uses the land it takes.

However, with a freeway, the government has always had the right to take your land.

Farrah Whitworth-Rahn

06-23-2005, 12:31 PM

UThe key phrasing that the case turns on is 'public use'. It can surely be argued that increased tax revenues and increasing tourism and whatnot can be public use... but that's a very broad reading of it. It can also be read that public use is only when the government uses the land it takes.

Only want to add that the economic benefits cited as a reason for the condemnation/taking now only need to be "predicted" according to Kennedy's opinion. Increased tax revenues and tourism don't have to materialize, just be expected.

Farrah Whitworth-Rahn

06-23-2005, 12:34 PM

Mustang

06-23-2005, 12:37 PM

What an absolutely sickening decision...

Arles

06-23-2005, 12:37 PM

I'm going to read the decision this afternoon. I don't know if it was right or wrong as a legal matter. But one thing that I have noticed is that most people are against it as a policy matter--both liberal and conservative.

While I doubt that there will be enough momentum behind it, I wonder if this is one of those issues where there might be enough support for a constitutional amendment. I think that you may be able to get 2/3 of Congress and 3/4 of the states to agree to limit the power of eminent domain to actual public use and not to public purpose.
I doubt it. Unless it's a hot-button social issue, legislation often comes down to lobbying and financial donations. The land developer lobby is much more powerful than any small group of citizens that may pop up advocating better property laws. Even the private real estate companies that don't develop can't compete in the lobbying arena with the developers. Congress, on both sides, will side with the developers on this. But, like most issues where congress doesn't side with the "people", I doubt it will ever find its way on any congressional agenda.

maximus

06-23-2005, 12:37 PM

ISiddiqui

06-23-2005, 12:39 PM

Dola - I'm interested to hear from all you lawyers if you think this decision completely invalidates the 5th Ammendment.

EDIT: Not sure I think so. I do think that the only avenue of attack property owners now have is to fight what constitutes "just compensation".
Why would it? The case was defining what the 5th Amendment 'public use' provision meant. After all, it still has to be the state that takes the property.

flere-imsaho

06-23-2005, 12:42 PM

It's a shame they never use eminent domain for anything cool, like maglev trains. :)

Arles

06-23-2005, 12:42 PM

That was ALREADY something the federal government could have done before this decision. If the government needed land for a freeway in 2005, 1995, 1985, 1975, etc, they could take your home and build the freeway. It's hard to argue that isn't public use.
Sorry about that. Good point by Isiddiqui - I meant to focus on the "strip mall" or private enterprising end. Thanks for the correction.

Farrah Whitworth-Rahn

06-23-2005, 12:43 PM

Why would it? The case was defining what the 5th Amendment 'public use' provision meant. After all, it still has to be the state that takes the property.
Not sure, that's why I asked.

It seems to me that this decision essentially makes it ok for a government to act as merely a vehicle by which developers can get their hands on the property. So long as "economic development" and "public benefits" are predicted after the taking.

Surtt

06-23-2005, 12:49 PM

Only want to add that the economic benefits cited as a reason for the condemnation/taking now only need to be "predicted" according to Kennedy's opinion. Increased tax revenues and tourism don't have to materialize, just be expected.

So. all I need to do is claim the mansion, or mall, or whatever, I want to build is worth more, and thus will generate more tax revenue, then the combined value of the homes currently on the land I want. What I acutely decide to do, if anything, with the land is immaterial. This is a wet dream for land speculators.

John Galt

06-23-2005, 12:52 PM

Not sure, that's why I asked.

It seems to me that this decision essentially makes it ok for a government to act as merely a vehicle by which developers can get their hands on the property. So long as "economic development" and "public benefits" are predicted after the taking.

As Volokh has pointed out on his blog, I'm not sure the dissent is really much better. The dissent allows the government to seize property and run a private enterprise (as they often do) by themselves. The majority says you can seize property for private enterprise run by private entities. I'm not sure how this will play in the real world, but I think takings is a hard area of the constitution.

I'm not a fan of the outcome of the decision, but I'm not sure it is constitutionally wrong either. I think people shouldn't have their property taken for use by private entitites, but I'm not sure the phrase "public use" in the constitution prohibits it. It is far from a clear issue.

Nonetheless, the solution would be for congress (or any state) to pass a law barring this type of takings (a constitutional amendment is not required). I think that may happen in many cases. So, before everyone panics, this really isn't that big of a change until we see the real world results.

flere-imsaho

06-23-2005, 12:53 PM

It seems to me that this decision essentially makes it ok for a government to act as merely a vehicle by which developers can get their hands on the property. So long as "economic development" and "public benefits" are predicted after the taking.

That's how I read it as well. Which makes O'Connor's comment on everyone not having the same access to the political process exceptionally important. I'm sure we're all familiar with communities where the local officials are in thrall to the local developers. This gives them a green light.

Anyway, I'll bet the immediate impact of this will be a lot more lawsuits about what the "fair value" of a property was. It's good to be a lawyer, I guess. :)

ISiddiqui

06-23-2005, 01:01 PM

Anyway, I'll bet the immediate impact of this will be a lot more lawsuits about what the "fair value" of a property was.
Um... why? Fair value has always been a concern in eminent domain actions. Do you think the state will be more inclined to low ball homeowners because of this? Or are you saying there will be far more eminent domain actions?

Farrah Whitworth-Rahn

06-23-2005, 01:05 PM

Nonetheless, the solution would be for congress (or any state) to pass a law barring this type of takings (a constitutional amendment is not required). I think that may happen in many cases. So, before everyone panics, this really isn't that big of a change until we see the real world results. I doubt congress will act on this. I don't think there will be enough of a national outcry, except from those of us who are paying attention. I expect the states will move on this first since it seems like such a localized issue.

I think the immediate results, at least in Arizona, will be less and less sales tax subsidies being put infront of the city council/voters for big companies wishing to relocate/expand here. Instead I think the cities will start to condem private property and either lease it to big companies, or convey it for a bargain price in exchange for a promise of some amount of jobs being located here. That way the politicians can say they brought jobs to their district, rather than they supported sales tax subsidies for big companies. Eaiser to win elections that way.

And that just leaves a bad taste in my mouth.

flere-imsaho

06-23-2005, 01:08 PM

Um... why? Fair value has always been a concern in eminent domain actions. Do you think the state will be more inclined to low ball homeowners because of this? Or are you saying there will be far more eminent domain actions?

The latter.

rexallllsc

06-23-2005, 01:28 PM

Essentially, even when you own a piece of land, you're just renting it now. It is simply a HORRID ruling, and one I'd like to see some of the majority decision makers get shot in the head over (yes, I feel that strongly)..

Blackadar

06-23-2005, 01:56 PM

.

?

John Galt

06-23-2005, 01:59 PM

?

!

sterlingice

06-23-2005, 02:05 PM

!
$

Wolfpack

06-23-2005, 03:18 PM

sabotai

06-23-2005, 03:54 PM

Thursday's 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.
Another strike against freedom.

Buccaneer

06-23-2005, 06:02 PM

:mad:

Peregrine

06-23-2005, 06:06 PM

It's nice to see something that people of all political stripes can agree on on this board -- this decision sucks!

Galaxy

06-23-2005, 09:23 PM

I find it funny that we have the right to own property, but we have to pay taxes on our own property on top of the intial "purchasing" property.

Young Drachma

06-23-2005, 10:24 PM

This decision is really, really disappointing. Hardly surprising, but disappointing nonetheless.

-Mojo Jojo-

06-23-2005, 11:55 PM

I find it funny that we have the right to own property, but we have to pay taxes on our own property on top of the intial "purchasing" property.

In other words, I find it funny that something called government exists...

Flasch186

06-24-2005, 12:04 AM

...eminent domain for private to private conversions is a bad idea and in the wrong hands could be devastating.

sabotai

06-24-2005, 12:06 AM

In other words, I find it funny that something called government exists...
Pretty much sums up my feelings. :)

MrBigglesworth

06-24-2005, 01:34 AM

I am a real estate agent in PA, so take my knowledge and biases for what it may be worth, but...
1. Constitutional - The clause is for "public use". That means to be used by the public and for the public. Not to turn it over to another private party. The Supremes need reading comprehension classes on this one.
If we are taking a literal interpretation of the Constitution, I think this was the right call. Public good can be an a nebulous term. Clearly, strip malls are a benefit for the community, both through increased tax revenue for the local governments and for the convenience of local shopping for residents that live nearby.

2. Moral - this ruling is awful.
I agree, I think this is the absolute worst moral decision. I can't imagine someone taking my house and offering what THEY think is a fair market value. And consider if the real estate market suddenly went down, and you owe more than the house is worth. Now you have to pay for the right to lose your house.

Essentially, even when you own a piece of land, you're just renting it now.
That has always been the case. Court after court has agreed that the government has a right to charge you rent (aka 'property taxes') indefinitely, and is also shown in the concept of echeat (at least in PA).

So, in summary, I think this was the right decision by the court in so much as their job is to interpret the law, but I think that the law should be changed. I think it would have been an 'activist' ruling to rule the other way, but I think it is up to the legislature to amend the Constitution.

Blackadar

06-24-2005, 05:48 AM

So, in summary, I think this was the right decision by the court in so much as their job is to interpret the law, but I think that the law should be changed. I think it would have been an 'activist' ruling to rule the other way, but I think it is up to the legislature to amend the Constitution.

I'd take issue with this statement. Reading what's on the paper (Constitution) isn't an activist ruling. Distorting the fairly blatent language to make decisions like this is activists. I'd say this is just flat-out a bad decision by some old fuckers who live in rich neighborhoods who will never have to deal with the ramifications of their decisions.

albionmoonlight

06-24-2005, 06:35 AM

I'd take issue with this statement. Reading what's on the paper (Constitution) isn't an activist ruling. Distorting the fairly blatent language to make decisions like this is activists. I'd say this is just flat-out a bad decision by some old fuckers who live in rich neighborhoods who will never have to deal with the ramifications of their decisions.
Actually, as the term "activist" is used in normal discourse, this is not an "activist" ruling. The majority of the people (as expressed through the legislature) decided to take an action that injured some individuals. Those individuals beleived that the Constitution protected their individual rights from the government action.

In this case, the court intereperted the Constitutional right narrowly and refused to block the will of the people. This was, therefore, a non-activist decision. Remeber, the actual taking of land was done by the state--not the Court.

Normally, one can't picture oneself in the shoes of the person who has his alleged rights violated (The Hispanic who had his car impounded because he "looked kinda funny." The Arab who is not allowed to gather evidence relevant to his defense because "he might learn something about our investigation from that evidence." The Nazi who wants to exercise his right to free speech. The store owner who beleives that he needs to own a gun to protect his store, etc.), so it is easier to side with the will of the people over the alleged right in question. In this case, we can all side with a middle class person who owns a house, so the right seems more important to us.

You can argue, almost certainly correctly, that the legislature in this case was motivated by lobbying money and does not really represent the will of the people--which is why this seems to be a case where the court goes against the will of the people. But that is not an issue for the courts. This is simply a case of individual rights v. will of the people. The will of the people won here. Whether the case is right or wrong is not really relevant to knowing that it is not "activist" as that term is normally defined.

(FWIW, in this case, the problem, as pretty much every justice noted, is that over time, the relevant precedent eroded away 5th Amendment rights without anyone noticing just how bad it had become. The majority could not distinguish the precedent and felt compelled to follow it. Justice Kennedy agreed with the majority, but wrote seprately to indicate--in effect--that he was not comfortable with the decision. The dissent tried to distinguish the precedent, which I think is the better result but not as intellectually sound as the majority approach. And Justice Thomas dissented separately to argue that we should revist and change the relevant precedent.)

I've been meaning to post a WDYK about judicial activism. The one I did about torts and personal injury seemed to go over pretty well. It's just been hard to come up with the time and energy to do so.

Blackadar

06-24-2005, 07:00 AM

Actually, as the term "activist" is used in normal discourse, this is not an "activist" ruling. The majority of the people (as expressed through the legislature) decided to take an action that injured some individuals. Those individuals beleived that the Constitution protected their individual rights from the government action.

In this case, the court intereperted the Constitutional right narrowly and refused to block the will of the people. This was, therefore, a non-activist decision. Remeber, the actual taking of land was done by the state--not the Court.

Normally, one can't picture oneself in the shoes of the person who has his alleged rights violated (The Hispanic who had his car impounded because he "looked kinda funny." The Arab who is not allowed to gather evidence relevant to his defense because "he might learn something about our investigation from that evidence." The Nazi who wants to exercise his right to free speech. The store owner who beleives that he needs to own a gun to protect his store, etc.), so it is easier to side with the will of the people over the alleged right in question. In this case, we can all side with a middle class person who owns a house, so the right seems more important to us.

You can argue, almost certainly correctly, that the legislature in this case was motivated by lobbying money and does not really represent the will of the people--which is why this seems to be a case where the court goes against the will of the people. But that is not an issue for the courts. This is simply a case of individual rights v. will of the people. The will of the people won here. Whether the case is right or wrong is not really relevant to knowing that it is not "activist" as that term is normally defined.

(FWIW, in this case, the problem, as pretty much every justice noted, is that over time, the relevant precedent eroded away 5th Amendment rights without anyone noticing just how bad it had become. The majority could not distinguish the precedent and felt compelled to follow it. Justice Kennedy agreed with the majority, but wrote seprately to indicate--in effect--that he was not comfortable with the decision. The dissent tried to distinguish the precedent, which I think is the better result but not as intellectually sound as the majority approach. And Justice Thomas dissented separately to argue that we should revist and change the relevant precedent.)

I've been meaning to post a WDYK about judicial activism. The one I did about torts and personal injury seemed to go over pretty well. It's just been hard to come up with the time and energy to do so.

I appreciate your superior knowledge of the law and I bow to it. When I use the word activist, I'm saying that they've corrupted the law so badly as to twist the words of the Constitution which are pretty damned clear and fairly unambiguous to allow something like this.

It has nothing to do with the will of the people. It has everything to do with the words on the paper. I think that these fuckers need to go back to law school and get an education in the real world. I feel so strongly about this type of decision - one that absolutely and blatently fucks the little guy and the Constitution at the same time - that I would probably contribute to the defense fund of a homeowner who lived in New London and who decided to put a bullet through the head of each and every Supreme who voted that way.

albionmoonlight

06-24-2005, 08:10 AM

I appreciate your superior knowledge of the law and I bow to it. When I use the word activist, I'm saying that they've corrupted the law so badly as to twist the words of the Constitution which are pretty damned clear and fairly unambiguous to allow something like this.

It has nothing to do with the will of the people. It has everything to do with the words on the paper. I think that these fuckers need to go back to law school and get an education in the real world. I feel so strongly about this type of decision - one that absolutely and blatently fucks the little guy and the Constitution at the same time - that I would probably contribute to the defense fund of a homeowner who lived in New London and who decided to put a bullet through the head of each and every Supreme who voted that way.
I appreciate your anger. Remember, though, that your real beef is with the local and state governments that are allowing the plan. The Supremes didn't gas up the bulldozers for this one. They just said that the Constitution does not forbid Connecticut from doing it.

The real enemy here as this battle is played out across the nation is real estate developers and their chokeholds on local government. This case presents an extreme example, but all across the country, family homes are under attack because a few people can make gobs of money by tearing those homes down and putting up million dollar condos. They are tricky and relentless. In South Carolina, for example, they try to slip provisions into "environmental" bills that will create strange tax structures for certain costal land. When examined closely, one notices that those tax structures are designed to raise the property tax on family homes that have had the audacity not to sell out to developers yet. Raise the taxes enough, and no one can afford to keep the land. So they have to sell to developers, who can then place developments there that just happen to fall into a loophole in the oppressive tax structure. I am sure that things like this happen everywhere--South Carolina is just one of the ones where I am aware of the details.

John Galt

06-24-2005, 08:14 AM

I appreciate your superior knowledge of the law and I bow to it. When I use the word activist, I'm saying that they've corrupted the law so badly as to twist the words of the Constitution which are pretty damned clear and fairly unambiguous to allow something like this.

It has nothing to do with the will of the people. It has everything to do with the words on the paper. I think that these fuckers need to go back to law school and get an education in the real world. I feel so strongly about this type of decision - one that absolutely and blatently fucks the little guy and the Constitution at the same time - that I would probably contribute to the defense fund of a homeowner who lived in New London and who decided to put a bullet through the head of each and every Supreme who voted that way.

To echo albionmoonlight's comments, I think the word "activist" is a little overused so it loses most of its meaning. The idea that the meaning of the words of the constitution are easy to interpret and judges distort them for their own agendas is a little simplistic, IMO. Some of the biggest debates among legal scholars revolve around how to determine what the constitution means. Your view seems to fit the idea of strict textualism which is actually not a widely held view anymore. Instead most legal scholars who used to hold textualist views have become interpretivists who seek the original meaning of the constitution.

The key problems with textualism from my perspective are that 1) the meaning of the words is far from clear, 2) the meaning of words changes over time, 3) textualism cannot be used as a complete theory because much of the constitution defies literal meaning, 4) textualism misses important contextual points which change the meaning of the individual clauses, 5) it is actually easier to insert bias into a textualist approach than some of the other interpretive methods, and 6) textualism leads to many absurd outcomes when viewing individual amendments (like Thomas's reading of the Establishment Clause that would allow every state to have their own state religion).

In this case, "public use" is actually much trickier than one would think. For example, textually, can you think of any reason the government cannot seize houses, build a mall, but run it entirely as a government enterprise? Also, why can the government tax sales to subsidize a stadium, but not seize property to do the same? The general answer is that the stadium burdens everyone equally, whereas it is unjust to burden a few disproportionately. However, I don't know where you can find the textual support for that.

In many ways, though, this decision is anti-activist. It narrows a constitutional right by assuming a very limited reading of it.

JonInMiddleGA

06-24-2005, 09:20 AM

I am a real estate agent in PA, so take my knowledge and biases for what it may be worth, but...

Holy cow, I don't believe it -- you & I seem to agree on something.

Not on everything mind you, but at least on something ;)

Your take on this being the only "correct" ruling per the Constitution matches mine. We seem to also agree on the notion that this being "amendable" is the way for opponents to change it.

We begin to part company on how "right or wrong" this all is, thereby reassuring both of us that our general agreement isn't a sign that either of us is slipping.

larrymcg421

06-24-2005, 11:06 AM

From my reading of the two opinions, the dissent was far more activist than the majority. The majority based it's opinion on tons of prcedent, while the dissent had much less precedent to point to and argued some really abstract concepts to get their point across.

larrymcg421

06-24-2005, 11:08 AM

dola

From the dissent:

For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.
If anything, the dissent admits that the court was properly following stare decisis, but was arguing they they should have ignored it. If they had done that, it would have been judicial activism.

I hate the idea that this happened as much as anyone else, but the Justices aren't the ones to blame.

Farrah Whitworth-Rahn

06-25-2005, 10:16 AM

For those of you who think that condeming land is ok so long as fair market value is paid for the land should really read this article (http://www.azcentral.com/news/articles/0625phxcondemn.html). I don't argue that this condemnation is perfectly legal on behalf of the city, even after the horrible SCOTUS decision.

I have a problem with the "just compensation" offered to these business owners. It's anything but just.

Phoenix set to seize 5 acres for downtown ASU campus

Ginger D. Richardson
The Arizona Republic

Jun. 25, 2005 12:00 AM Phoenix plans to seize nearly 5 acres to build the new Arizona State University Downtown Phoenix Campus.

After months of failed negotiations, the city's attorneys filed the condemnation notices this week in Maricopa County Superior Court against eight downtown property owners. The land the city wants ranges from vacant parking lots to a three-story office building. More filings are expected. The city anticipates that it will need to use eminent domain to acquire a little more than 25 percent of the campus.

"We will continue to negotiate with people, of course," Assistant City Manager Sheryl Sculley said. "But we do have to proceed and move forward on this."

The City Council authorized the use of eminent domain, which allows governments to take private property by force, more than six months ago to assemble land for the campus.

But even though the move was expected, it is doing little to cool the ire of those about to lose their property.

"It's pretty clear . . . that the city has carte blanche to take the land," said landowner Norman Fox, referring to a U.S. Supreme Court ruling Thursday that further strengthened the law that allows cities to seize homes and businesses in the name of redevelopment. "But that doesn't mean we shouldn't be treated fairly."

The most critical case involves the Park Place building at 500 N. Third St., which is slated to become ASU's College of Nursing. City officials say they need to start renovation work by fall in time for the first classes in August 2006.

"We are really up against a deadline here," Phoenix Mayor Phil Gordon said of the building. "We can't miss this opportunity."

The city also filed an order asking for immediate possession of that property and all the other parcels. It wasn't clear Friday how soon Phoenix could take control of them, but City Attorney Gary Verburg said he hopes Phoenix will have possession of at least Park Place by the end of summer.

"We can take possession as soon as the judge says we can take possession," he said. "We can fight about value later."

Property owners must be served notice of the condemnation filings and then will have 20 days to respond before a hearing can be scheduled. However, almost everyone agrees that the city has a legal right to take the property. The fight is expected to be over how much Phoenix will pay for it.

In total, the ASU campus will stretch over about 20 acres of prime real estate. The school will be bordered by Van Buren Street on the south, First Avenue on the west, Second and Third streets on the east and Fillmore Street on the north.

The city already has purchased some of the land; other parcels are being developed under public-private deals that are being worked out with property owners.

Phoenix has hired an outside firm to appraise each of the properties being condemned. According to records obtained Friday by   The Arizona Republic, the city is offering anywhere from $35 to $115 per square foot for each property.

Some question whether those are fair prices.

Anthony Olivieri, for example, said he bought some land and a commercial building on Central Avenue for $490,000 back in 2003. On April 1, the city offered him about $440,000.

"I wouldn't say that I am being treated unfairly, but it does bother me the way that the city is handling this whole thing," said Olivieri, who hoped to build a high-rise development on the site in a partnership.

Others are more blunt.

"All I know is that I've been notified in writing that the city is going to take my land, and I am not happy about it," said Leon Woodward, who owns a building rented by a dry cleaner and a parking lot at 501 and 509 N. First St.

Woodward's case wasn't among this week's filings, but the city is already preparing an appraisal of his land to be used in condemnation proceedings.

Woodward said he expects that the appraisals will be too low and vows that he will start a public campaign against the city's upcoming bond program if he isn't treated fairly.

The city hopes to roll $233 million worth of land acquisition and associated costs for the ASU campus into the bond package, which goes before voters in March. If voters don't approve it, it will make it difficult for the city and ASU to build the second phase of the campus, which is expected to have 8,000 students.

Woodward and other landowners wouldn't say specifically what they thought their land is worth. But they think a fair market rate is well over $100 a square foot. They cite recent sales of downtown property that netted $120 to $144 per square foot.

"Why can't the landowners hire their own appraisers to come up with a value that we think is fair?" asked Norman Fox, who owns a 7,250-square-foot parcel along Central Avenue. The land is vacant, but Fox said he had wanted to partner with Olivieri to develop the site. The city has offered him $40 a square foot.

"I am willing to give up the high-rise for the progress," he said. "But don't steal it from me."

Phoenix officials contend that their offers are fair. They believe that all the announcements about downtown, from the university campus to a $600 million renovation of Phoenix Civic Plaza to light rail, have fueled rampant speculation. Officials don't believe they should be victimized by the artificially inflated costs.

But they do say they will continue to negotiate with landowners.

ISiddiqui

06-25-2005, 04:03 PM

I don't argue that this condemnation is perfectly legal on behalf of the city, even after the horrible SCOTUS decision.
Um... that would have been legal even BEFORE the SCOTUS decision... or in whatever decade. The city is taking the land for a governmental use (public university).

ISiddiqui

06-25-2005, 04:06 PM

Oh, btw, on the 'activist' charges. It seemed interesting that the majority was writing as unactivist as possible, saying it is up to the states to change their laws. Stricking down a law is an activist action.

Public use can be read in both contexts.

-Mojo Jojo-

06-25-2005, 11:01 PM

JeffNights

06-25-2005, 11:18 PM

Grrr

Easy Mac

06-26-2005, 06:37 AM

In case you haven't figured this out yet, in modern political parlance, activist == I don't like it.
actually, activist = decision supported by more evil liberals. Conservatives aren't allowed to be called activists... I think it violates their copyright laws or something like that... be careful, we may get sued for unlawful use.

Farrah Whitworth-Rahn

06-26-2005, 10:40 AM

Um... that would have been legal even BEFORE the SCOTUS decision... or in whatever decade. The city is taking the land for a governmental use (public university).
Umm... perhaps that's why I'm not arguing it.

albionmoonlight

06-27-2005, 07:16 AM

Big day today. Up to two possible retirements. File Sharing. Ten Commandments. And some case that I have not been following involving the right to control high speed internet that has the potential to open competition in the area and lower internet rates for all of us.

I imagine that this thread will be going in a few different directions this afternoon:

"All I am saying is that if I want to use Grokster to download clips of myself standing on the Ten Commandments at the courthouse while burning the American Flag, I shouldn't have to worry about the state seizing my house to build a new stripmall while I do it. And I want Bush to appoint someone who agrees with me."

flere-imsaho

06-27-2005, 09:20 AM

Breaking news is that the Court has ruled that the Ten Commandments can't be displayed. No details yet.

flere-imsaho

06-27-2005, 09:21 AM

Summary from CNN:

WASHINGTON (AP) -- A split Supreme Court struck down Ten Commandments displays in courthouses Monday, ruling that two exhibits in Kentucky cross the line between separation of church and state because they promote a religious message.

The court's decision was 5-4, with Justice Sandra Day O'Connor casting the swing vote.

The decision was the first of two seeking to mediate the bitter culture war over religion's place in public life. In it, the court declined to prohibit all displays in court buildings or on government property.

Justices left legal wiggle room, saying that some displays -- like their own courtroom frieze -- would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.

flere-imsaho

06-27-2005, 09:22 AM

Another big ruling:

NEW YORK (CNN/Money) - The U.S. Supreme Court overturned a ruling Monday that required cable operators to open up their high-speed Internet lines to rivals.

The decision is a big victory for the Federal Communications Commission and major telecommunications companies, including Charter Communications, Time Warner Cable and SBC Communications.

On the losing side are small Internet service providers, including Earthlink, and a host of local governments.

flere-imsaho

06-27-2005, 09:26 AM

This is also pretty big:

WASHINGTON (AP) -- The Supreme Court rejected appeals Monday from two journalists who have refused to testify before a grand jury about the leak of an undercover CIA officer's identity.

The cases asked the court to revisit an issue that it last dealt with more than 30 years ago -- whether reporters can be jailed or fined for refusing to identify their sources.

The justices' intervention had been sought by 34 states and many news groups, all arguing that confidentiality is important in news gathering.

"Important information will be lost to the public if journalists cannot reliably promise anonymity to sources," news organizations including The Associated Press told justices in court papers.

Time magazine's Matthew Cooper and The New York Times' Judith Miller, who filed the appeals, face up to 18 months in jail for refusing to reveal sources as part of an investigation into who divulged the name of CIA officer Valerie Plame.

Plame's name was first made public in 2003 by columnist Robert Novak, who cited unidentified senior Bush administration officials for the information. The column appeared after Plame's husband, former Ambassador Joseph Wilson, wrote a newspaper opinion piece criticizing the Bush administration's claim that Iraq sought uranium in Niger.

Disclosure of an undercover intelligence officer's identity can be a federal crime and a government investigation is in its second year. No charges have been brought.

U.S. Attorney Patrick Fitzgerald of Chicago, the special counsel handling the probe, told justices that the only unfinished business is testimony from Cooper and Miller.

Cooper reported on Plame, while Miller gathered material for an article about the intelligence officer but never wrote a story.

A federal judge held the reporters in contempt last fall, and an appeals court rejected their argument that the First Amendment shielded them from revealing their sources in the federal criminal proceeding.

Every state but Wyoming recognizes reporters' rights to protect their confidential sources of information, justices were told in a brief filed on behalf of 34 states, and without those privileges "reporters in those states would find their newsgathering abilities compromised, and citizens would find themselves far less able to make informed political, social and economic choices."

But Fitzgerald said in his own filing that the federal government is different. "Local jurisdictions do not have responsibility for investigating crimes implicating national security, and reason and experience strongly counsel against adoption of an absolute reporter's privilege in the federal courts," he said.

In the last journalist source case at the Supreme, the 1972 Branzburg v. Hayes, a divided court ruled against Louisville, Ky., reporter who had written a story about drug trafficking and was called to testify about it. Justices said that requiring journalists to reveal information to grand juries served a "compelling" state interest and did not violate the First Amendment.

That decision has been interpreted differently and clarification is needed because dozens of reporters around the country have been subpoenaed over the past two years, said Washington lawyer Miguel Estrada, representing Time magazine.

The cases are Miller v. United States, 04-1507, and Cooper v. United States, 04-1508.