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Why would you not want to issue a take down notice to one of the most well-known IP lawyers out there? Warner isn't doing it to directly profit off of the case,

Why would you not want to issue a take down notice to one of the most well-known IP lawyers out there? Warner isn't doing it to directly profit off of the case, just as they weren't with torrentors. The pittance they got from those settlements was irrelevant. Their goal is deterrent. I'd bet anything that one of two things are the case. 1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. If it's the latter, I'd do it too if I were them.

menloparkbum 18y ago
1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. yes, that is what I was trying to say, too. (badly)
tsally 18y ago
It seems like an awfully big gamble given that they could lose. But well argued and written.
jerf 18y ago
For a copyright precedent, this strikes me as a terrible, terrible case for them. dreish is correct about the nature of Fair Use, and furher remember that underlying those court-generated criteria for Fair Use lies the fact that Free Speech actually trumps copyright law; the First Amendment is an amendment, whereas the Constitutional provision for copyright is in the Constitution proper, not an amendment. They've been harmonized, at least in theory (so no, you don't get to just claim Free Speech destroys copyright entirely), but if there is a conflict, the 1st wins. And this is political free speech, debating how the law works. This is "copyright infringement"/Fair Use at the highest standard of education and political debate, where the courts should most fear to tread. Obviously he could take it too far, but given the fuzziness of Fair Use and how it tends to be ruled this is nowhere near egregious violation. I favor the automated failure theory. If they were out to make a point I'm sure they could find something more clear, and a target less well defended (and funded) than a famous law professor. There's little upside for them here (even if they win, they only create a martyr) and some downside.
- jerf 18y ago
  The problem with mattmaroon citing this message as an example of... whatever it is he's accusing me of... is that I actually have studied this topic, from primary sources, and been learning about it for years now. Perhaps he doesn't know enough about the topic to recognize that. He misinterprets my first line as claiming this is setting a precedent. No, I'm talking about how they would want this to turn into something that sets this up as a precedent, because simply a random fight is pointless expense. Secondly... unless you can bring a lawyer in to disprove my points, I, like I said, have actually been studying this stuff for a while and am reasonably confident on this point. This is, Constitutionally, a bad case for Warner, and precisely because I don't think they are stupid, give them the benefit of the doubt and assume this was an at-least semi-automated process gone wrong. That certainly happens often enough, after all. Other explanations exist; simple intimidation, some "larger" plan, the belief they can ram it through with enough money, an order from a non-lawyer on top going against lawyerly advice. Frankly, assuming that companies always act rationally, even given the information available from their point of view, is naive and not supported by the facts, a point I've seen from the inside of plenty of tech and non-tech companies. Going off on people for failing to assume this is not justified.
anigbrowl 18y ago
Deterrence is unlikely to have much effect (especially given the facts of this case) and if they lose, which I think they will despite my not being a lawyer, they will have shot themselves in the foot. So far they've picked on exactly the sort of people who could be bullied into a settlement. Lessig would love to make a test case out of this. the irony of picking on Lessig himself (as opposed to whoever mixed the muppets with Anime) is too rich for words.
- mattmaroon 18y ago
  Has it occurred to you that Warner hires lots of very smart people who ARE IP lawyers? Perhaps people who are just as smart as you, with 1000x the legal experience, looked at the case and decided it was most likely winnable. Of course not, they're not a tech company, no way they could have anyone intelligent working for them right?
  - josefresco 18y ago
    In a much broader sense I have to disagree with your "tech people assume there are no smart people outside tech" argument. An attack on a technology entity is perceived as an attack on all of us and what we believe in. Technologists believe in the machine, or the formula or the data and when they perceive an attack on this model based on greed it doesn't matter how smart the 'attacker' is. It has nothing to do with smart people or which side they're on, it has to do with the nature of true technologists. Each case has it's own details that distinguishes it, but I think this sense of 'our thinking is superior' is what drives the reactions of tech (all) people. That stance still allows for smart people on the other side, they're just wrong or motivated by some external factor (greed).
  - pageman 18y ago
    hi matt, commented on your other post. From experience, the music labels would like us to believe they have a battery of lawyers who study this, sad to say - it's not the case, from BOTH sides of the fence.
JulianMorrison 18y ago
Hand the guy a podium, a megaphone, and a gold-plated opportunity to argue that fair use needs to be much larger - yeah, quite a win </sarcasm>. They stand to win on the law - he could leverage a change in the law. They're taking a knife to a gunfight.

menloparkbum 18y ago

1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. yes, that is what I was trying to say, too. (badly)

tsally 18y ago

It seems like an awfully big gamble given that they could lose. But well argued and written.

jerf 18y ago

For a copyright precedent, this strikes me as a terrible, terrible case for them. dreish is correct about the nature of Fair Use, and furher remember that underlying those court-generated criteria for Fair Use lies the fact that Free Speech actually trumps copyright law; the First Amendment is an amendment, whereas the Constitutional provision for copyright is in the Constitution proper, not an amendment. They've been harmonized, at least in theory (so no, you don't get to just claim Free Speech destroys copyright entirely), but if there is a conflict, the 1st wins. And this is political free speech, debating how the law works. This is "copyright infringement"/Fair Use at the highest standard of education and political debate, where the courts should most fear to tread. Obviously he could take it too far, but given the fuzziness of Fair Use and how it tends to be ruled this is nowhere near egregious violation. I favor the automated failure theory. If they were out to make a point I'm sure they could find something more clear, and a target less well defended (and funded) than a famous law professor. There's little upside for them here (even if they win, they only create a martyr) and some downside.

jerf 18y ago
The problem with mattmaroon citing this message as an example of... whatever it is he's accusing me of... is that I actually have studied this topic, from primary sources, and been learning about it for years now. Perhaps he doesn't know enough about the topic to recognize that. He misinterprets my first line as claiming this is setting a precedent. No, I'm talking about how they would want this to turn into something that sets this up as a precedent, because simply a random fight is pointless expense. Secondly... unless you can bring a lawyer in to disprove my points, I, like I said, have actually been studying this stuff for a while and am reasonably confident on this point. This is, Constitutionally, a bad case for Warner, and precisely because I don't think they are stupid, give them the benefit of the doubt and assume this was an at-least semi-automated process gone wrong. That certainly happens often enough, after all. Other explanations exist; simple intimidation, some "larger" plan, the belief they can ram it through with enough money, an order from a non-lawyer on top going against lawyerly advice. Frankly, assuming that companies always act rationally, even given the information available from their point of view, is naive and not supported by the facts, a point I've seen from the inside of plenty of tech and non-tech companies. Going off on people for failing to assume this is not justified.

anigbrowl 18y ago

Deterrence is unlikely to have much effect (especially given the facts of this case) and if they lose, which I think they will despite my not being a lawyer, they will have shot themselves in the foot. So far they've picked on exactly the sort of people who could be bullied into a settlement. Lessig would love to make a test case out of this. the irony of picking on Lessig himself (as opposed to whoever mixed the muppets with Anime) is too rich for words.

mattmaroon 18y ago
Has it occurred to you that Warner hires lots of very smart people who ARE IP lawyers? Perhaps people who are just as smart as you, with 1000x the legal experience, looked at the case and decided it was most likely winnable. Of course not, they're not a tech company, no way they could have anyone intelligent working for them right?
- josefresco 18y ago
  In a much broader sense I have to disagree with your "tech people assume there are no smart people outside tech" argument. An attack on a technology entity is perceived as an attack on all of us and what we believe in. Technologists believe in the machine, or the formula or the data and when they perceive an attack on this model based on greed it doesn't matter how smart the 'attacker' is. It has nothing to do with smart people or which side they're on, it has to do with the nature of true technologists. Each case has it's own details that distinguishes it, but I think this sense of 'our thinking is superior' is what drives the reactions of tech (all) people. That stance still allows for smart people on the other side, they're just wrong or motivated by some external factor (greed).
- pageman 18y ago
  hi matt, commented on your other post. From experience, the music labels would like us to believe they have a battery of lawyers who study this, sad to say - it's not the case, from BOTH sides of the fence.

JulianMorrison 18y ago

Hand the guy a podium, a megaphone, and a gold-plated opportunity to argue that fair use needs to be much larger - yeah, quite a win </sarcasm>. They stand to win on the law - he could leverage a change in the law. They're taking a knife to a gunfight.