GOLFnSUN
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|  Perfect example of an activist judge
Davis had instructed (.pdf) the jury last year that the recording industry did not have to prove anybody downloaded the songs from Thomas' open Kazaa share folder. Davis read Jury Instruction No. 15 to jurors saying they could find unauthorized distribution -- copyright infringement -- if Thomas was "making copyrighted sound recordings available" over a peer-to-peer network "regardless of whether actual distribution has been shown."
But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a "manifest error of the law." He heard arguments from both sides and said he would issue a ruling soon.
With Wednesday's opinion, Davis made his revised position official and ordered a retrial -- one with different jury instructions. Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism.
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Matt
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| said by GOLFnSUN  :Davis had instructed (.pdf) the jury last year that the recording industry did not have to prove anybody downloaded the songs from Thomas' open Kazaa share folder. Davis read Jury Instruction No. 15 to jurors saying they could find unauthorized distribution -- copyright infringement -- if Thomas was "making copyrighted sound recordings available" over a peer-to-peer network "regardless of whether actual distribution has been shown."
But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a "manifest error of the law." He heard arguments from both sides and said he would issue a ruling soon.
With Wednesday's opinion, Davis made his revised position official and ordered a retrial -- one with different jury instructions. Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. Sounds more like considering all the facts in the case and changing one's mind. When a court higher than him found that the RIAA had to prove file sharing actually took place, declaring a manifest error is the right thing to do.
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brooklynman4
join:2004-09-07
Brooklyn, NY | reply to GOLFnSUN
U cant blame the judge if there is not any proof. |
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cjski
The Wheel Weaves As The Wheel Will
join:2001-01-04
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| reply to GOLFnSUN
said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. Dude! Let go of the right-wing talking point...the judge did the right thing. |
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Mr Matt
join:2008-01-29
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said by GOLFnSUN :With Wednesday's opinion, Davis made his revised position official and ordered a retrial -- one with different jury instructions. Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism.  If the judge did not correct his error the decision would have been overturned if the case were appealed. Rather than cause the accused additional cost to file the appeal the judge corrected his error. |
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BF69
join:2004-07-28
Camden, TN
| reply to GOLFnSUN
said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. A) why you would be FOR teh RIAA is beyond me.
B) get off your neo-con crap. If a conservative judge gauges injudical activism you're all for it because he sides with you. You just don't call it that. So you have situatinal ethics and are alos a hypocrite.
The FACT is that he made a BAD call in the trial and he corrected himself. Nohting wrong with that.
I'm all for getting pirates and illegal downloaders. What I am again is the RIAA and PAA and whomever deciding that things like PROOF are not needed. And just ASSUMING one did something illegal is proof enough. Also the ammounts they want pre violation are redicoulous.
Funny how people like you are for caps on medical malpratice lawsuits when a person has actualy be injured or killed, but when a company wants to sue some poor slob that barely make minimum wage $150,000 per song, somehow that's ok. Songs are 99 cents. So for example if someone steals 100 songs that should be $99 and then triple the damages as allowed by law, so that would be $297. Also since that person would have lost he pays the court costs. No need for a million lawsuit against someone that obviously won't make that much in 25 years. Meanwhile some dude in China is making 100,000 DVD rips of movies still in theaters and has his family in the US sell them at flea markets and the media companies do nothing. |
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Camelot One
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said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. Reversing himself when he realized he was wrong seems to be the mark of a decent judge, not an "activist".
But enjoy your "paid-per-crap-comment" checks from the RIAA while they last. I won't fault you for trying to make a buck in this economy, even if you had to sell your soul to satin to do it.
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funchords
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1 edit | reply to GOLFnSUN
said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. I followed this one pretty closely, there were several defects in the process and -- post verdict -- that contrary "making available" decision that just made one of the trial defects glare.
Something had to be done. RIAA, of course, was still lawyered up but the defendant was just out there hanging, minus lawyer at one point. And she did request a new trial as well as a lower penalty.
$220,000 is crazy high -- perhaps $500,000 after legal fees are awarded. (Of course if she's found responsible in retrial, the legal fees will likely be doubled.)
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rit56
join:2000-12-01
New York, NY | reply to GOLFnSUN
not a good day for you TK. everyone who visits this site is hip to your corporate agenda. |
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Jovi
join:2000-02-24
Mount Joy, PA
| reply to cjski
said by cjski :said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. Dude! Let go of the right-wing talking point...the judge did the right thing. How is his position right wing? I am a right winger and I totally disagree with him. 
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james
join:2001-02-26
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| said by Jovi :How is his position right wing? I am a right winger and I totally disagree with him. Because debating in your country has degenerated so much that it now consists entirely of calling your opponent a crazy left winger or a facist right winger (depending on what you are). |
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knightmb
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said by GOLFnSUN :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. Ah, the situation has different view points. Your viewpoint is that he abused his judicial power through his own person views, but there is nothing to show he has a personal view in this. More like his view is simply one of a mistake that should seek another trial to clear things up instead of trying to instruct jurors to a pre-canned verdict as was delivered in the first trial. In my opinion, he is by definition "having second thoughts in light of new evidence".
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Dogfather
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3 edits | reply to GOLFnSUN
Huh? You should actually READ what you quote.
quote:
But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a "manifest error of the law." He heard arguments from both sides and said he would issue a ruling soon.
More importantly you should actually bother to read the ruling. »arstechnica.com/news.media/thoma···ng-1.pdf
Looks more like he actually READ the copyright act which requires distribution. Simply making the files available doesn't constitute distribution under the act. (Page 14) And it was the agents of the RIAA who actually made the copies, not the defendant.
The jury got bogus instructions, period. The RIAA failed to prove distribution or reproduction violations. They lose. HA HA. |
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jc100
join:2002-04-10
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Because in TK Junkmail's mind, any time a Judge does something he agrees with, it's a good call. Go against that belief, and it's judicial activism. You sound like amigo and pnh. All three of you have no clue. If it weren't for judges making decisions, and being open to review, bad rulings would stay on the books. Then again, I guess in all three of your minds, people NEVER make mistakes. Maybe this judge felt his decision was incorrect, seeing how higher courts gave a dissent to his ruling. Upon reading it, he found error and deemed a review necessary. That couldn't be it though, right? It's all down to your buzz word of Judicial Activism. If you were Amigo, it'd be self styled freedom fighter. Pnh hasn't started his own redundant word. I'm sure it'll get to that point though. |
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funchords
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| any time a Judge does something he agrees with, it's a good call. Go against that belief, and it's judicial activism. I'm not sure if I'm not guilty of that from time to time. seeing how higher courts gave a dissent to his ruling. Actually, the other court (which I do think was also a higher court, but I'm not sure if it was in its line of precedent such that it would affect) made its finding on another case -- but it was literally within a 1-3 months of the Jammie Thomas case.
I admire him for saying, "hey, looks like I was wrong" here. Too many people try to deflect responsibility. Ignoring it and waiting for an appeal would have been the easiest thing to do. He made the harder choice.
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leevis
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said by Jovi :I am a right winger and I totally disagree with him. Yup, same here. They don't come much more "right wing" than me, but I completely disagree with him as well. The judge absolutely did the right thing! I've always been taught that, when you make a mistake you correct it, even if the mistake hasn't been caught by someone else yet. In this case, it's not activism, it's honesty and humility.
Leevis
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David
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You are right but at the same time they are looking at it as a very small fine compared to what she got. Plus they have to prove now that she was distributing for profit and prove that they downloaded it legitimately. The RIAA is going to have to prove they lost millions. The judge was right in some cases. Congress needs to adapt the laws for p2p, cause a $250k judgment you would expect for a company. Not a single person. The other rub of infringement is there has to be a profit potential. There is no profit when you use kazaa. So how could you ask someone to pay 1/4 of a million dollars, if you took in no money? It was only a matter of time before this gets reversed.
I see the judge's point really easy for reversing it.
Another case kind of like this was recently reversed as well. A Spammer (e360 insight) sued Spamhaus for calling him a spammer. Well he won by default when Spamhaus didn't show to court. Spamhaus in in belgium, where spammers are put in cuffs and hauled off to jail. The CEO of e360 insight wasn't going to go to their courts because what he did would just put him in jail under belgium law. Long story short the judge reversed the decision because they had no authority over belgium. I think they even tried to shut down the registrar but they just took it out of country which solved that problem. I guess if the owners of spamhaus came to IL yea they might have to pay but they are counting on the fact that the e360 CEO won't set foot in belgium either. I think last story here published by Karl was the judge reversed the decision because it would do no good and threw the case out. |
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David
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said by funchords :I admire him for saying, "hey, looks like I was wrong" here. Too many people try to deflect responsibility. Ignoring it and waiting for an appeal would have been the easiest thing to do. He made the harder choice. For that right there I hope his people in his state realize that no one is perfect and re-elect him. He made a mistake and fixed it! |
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pnh102
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said by jc100 :You sound like amigo and pnh. ... Pnh hasn't started his own redundant word. Do you enjoy being wrong all the time?
»Good For the Judge
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