 
LiamJunket
Premium
join:2002-03-03
Ocean City, NJ
 ·Comcast
|  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
Quitting Caffeine - Argh
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join:2003-07-20
Jamestown, NC
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| Re: Perfect example of an activist judge said by LiamJunket  :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 | 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
Sun City, CA
| said by LiamJunket :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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Jovi
join:2000-02-24
Mount Joy, PA
| Re: Perfect example of an activist judge said by cjski :said by LiamJunket :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
antarctica
| Re: Perfect example of an activist judge 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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james
join:2001-02-26
antarctica
| Re: Perfect example of an activist judge said by kamm :He's not a right-wing person, I agree - he's an ultra-right-wing corporate extremist Yeah, or he could be someone with a different opinion than you have. It's amazing how afraid we are of questioning our own beliefs, as if someone who disagrees with us will somehow make us wrong. | |
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kamm
join:2001-02-14
Brooklyn, NY
 ·T-Mobile US
 ·Packet8
| Re: Perfect example of an activist judge said by james :said by kamm :He's not a right-wing person, I agree - he's an ultra-right-wing corporate extremist Yeah, or he could be someone with a different opinion than you have. Ummm WTF? How is it relevant here?
There are a lot of different views here yet non has been declared such a corporate-licker one like his ones.
It's amazing how afraid we are of questioning our own beliefs, as if someone who disagrees with us will somehow make us wrong.
It's amazing when someone with obviously little or zero clue about his track record jumps in and starts posting empty cliches confidently... how about reading up a little bit? 
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james
join:2001-02-26
antarctica
| Re: Perfect example of an activist judge said by kamm :It's amazing when someone with obviously little or zero clue about his track record jumps in and starts posting empty cliches confidently... how about reading up a little bit? It's amazing how every time I defend TK, people accuse me of not knowing "his track record". Yeah, I know what his opinion is, I read it almost every day. I even disagree with him in almost every post he makes, and I take the time to argue with him sometimes.
Maybe instead of acting like an immature dunce, you could try stringing a few sentences together without resorting to ad hominem arguments to prove your point.
Remember kamm, if you were taking flack on a regular basis for giving your opinion I would be sticking up for you too, regardless of whether or not I agree with said opinion. | |
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digitalfreak
join:2005-12-09
49533
| said by Jovi :said by cjski :said by LiamJunket :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. Corporate shill fits him much better.  | |
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| Mr Matt
join:2008-01-29
Eustis, FL
·Comcast
·Embarq
| said by LiamJunket :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
| said by LiamJunket :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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funchords
Hello
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Washington, DC
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1 edit | said by LiamJunket :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 | not a good day for you TK. everyone who visits this site is hip to your corporate agenda. | |
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| jc100
join:2002-04-10
·RoadRunner Cable
| 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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Washington, DC
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| Re: Perfect example of an activist judge 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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| | | jc100
join:2002-04-10
·RoadRunner Cable
| Re: Perfect example of an activist judge Well at least in threads I haven't found your buzz word. Maybe I have forgotten it, as it doesn't stand out. As for being wrong, that's funny coming from you, amigo, and tk junk mail who tend to fail miserably at proving dissenting views incorrect when presented with insurmountable facts. Then again, wrong in your 3 minds is subjective considering it's your views or no views. | |
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pnh102
Reptiles Are Cuddly And Pretty
Premium
join:2002-05-02
Mount Airy, MD | Re: Perfect example of an activist judge I've been busy. | |
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join:2002-04-10 | Re: Perfect example of an activist judge One can imagine. It takes a lot of effort to concoct "proof" that neither exists or proves anything. That's a full time job in itself. Yet, notwithstanding, you pull it off. | |
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pnh102
Reptiles Are Cuddly And Pretty
Premium
join:2002-05-02
Mount Airy, MD
·Comcast
| Re: Perfect example of an activist judge said by jc100 :One can imagine. It takes a lot of effort to concoct "proof" that neither exists or proves anything. That's a full time job in itself. Yet, notwithstanding, you pull it off. I know. I am very good at what I do. I would dare say I rank among the very best.
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Matt
Quitting Caffeine - Argh
Premium
join:2003-07-20
Jamestown, NC | Wow Tk, you are getting beat up pretty bad. I hope you have thick skin man. 
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LiamJunket
Premium
join:2002-03-03
Ocean City, NJ
·Comcast
| Re: Perfect example of an activist judge said by Matt :Wow Tk, you are getting beat up pretty bad. I hope you have thick skin man. I consider the source and just shake my head. It is just the "Peanut Gallery" spewing their usual flames because they are incapable of discourse without resulting to insults. It is a really bad reflection on the state of our education system when what they post is the height of their debating skills.
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| | Ahrenl
join:2004-10-26
North Andover, MA | Don't feed the troll. | |
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LiamJunket
Premium
join:2002-03-03
Ocean City, NJ
·Comcast
| Re: Perfect example of an activist judge said by major marco :said by LiamJunket :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. And if said trial was not declared a mistrial because the prosecution failed to prove infringement, you'd be commenting what an outstanding job the court did and how justice was served. I guess you took that Mind Reading 101 course in college. 
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digitalfreak
join:2005-12-09
49533
| Re: Perfect example of an activist judge No, your bias is always so blatantly obvious, it doesn't take much. | |
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Karl Bode
News Guy
join:2000-03-02 | Trolling, flaming, thread locked. | |
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RayW
Premium
join:2001-09-01
Layton, UT
clubs: | Wonder who pointed out his error? Someone in a higher court who did not want to see him possibly lose his seat if that case came under review?
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| dentman42
join:2001-10-02
Columbus, OH
·AT&T Midwest
| Re: Wonder who pointed out his error? said by RayW :Someone in a higher court who did not want to see him possibly lose his seat if that case came under review? I was thinking the bribe check from the MAFIAA bounced.
Just what they hate. A judge that doesn't stay bought. | |
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| | RayW
Premium
join:2001-09-01
Layton, UT
clubs:
·XMission
| Re: Wonder who pointed out his error? said by dentman42 :I was thinking the bribe check from the MAFIAA bounced. Just what they hate. A judge that doesn't stay bought. Unlikely. In the overall scheme of things, that is only a day or two more before the rulers of RIAA can buy that new car, boat, or house. Not worth the bad publicity.
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ARGONAUT
got ping?
join:2006-01-24
New Albany, IN | RIAA waterboarding This reads like a feel good story. | |
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qworster
join:2001-11-25
Los Angeles, CA
·Brand X Internet
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·DSL EXTREME
4 edits | WRONG!!! said by LiamJunket :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. Actually, it was brought to his attention that a PREVIOUS case in the Appeals court for the First District (San Francisco) had ruled the OPPOSITE of his instructions to the jury. Therefore there was precedent that was the complete opposite of what he had instructed the jury.
Why neither side brought this to his attention during the trial is anyone's guess, but I'll bet that if the RIAA knew about it that they didn't on purpose-which is misconduct!
This was NOT judicial activism as you have charged-it was a judge making a bad call and then making it right.
PS: This WOULD have been reversed on appeal, based upon the above. | |
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uid1307457
Premium
join:2005-12-30
Tempe, AZ | hahaha ahhahahahah | |
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Simba7
join:2003-03-24
Billings, MT | Ahh.. Another Non-victory for the **AA's. Yep. Nothing like getting kicked in the nuts after you thought you won.
Maybe if they wasn't soo damn money hungry (6-7 figure fines), I'd actually feel sorry for them.
I'm also sick of the **AA's having more power then the president. | |
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Sammer
join:2005-12-22
Pittsburgh, PA
| Corporate Welfare For years the major record labels were just middle men who made money by exploiting recording artists. Such an ethically questionable business model was doomed to fail. Technology such as the internet is hastening its demise. So now they seek corporate welfare either through the threat of lawsuits or cozying up to some members of Congress. | |
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Transmaster
Don't Blame Me I Voted For Bill and Opus
join:2001-06-20
Cheyenne, WY | Well.... This will give ammo for the class action suit that I am sure is very close to being filed. The RIAA is going to rue the day they started down the road with this scorched earth policy.
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funchords
Hello
Premium,MVM
join:2001-03-11
Washington, DC | RIAA's only court victory? Atlantic v. Howell was a RIAA file-sharing win. Well, maybe RIAA didn't win that case as much as Howell doomed it to fail.
»RIAA wins another lawsuit in court | |
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Kylemaul
Lovin' My Firefox 1.5.x
Premium
join:2001-03-30
North Port, FL
clubs: | Perhaps there is hope-- --for this great nation after all. | |
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theyhaveapoint
@optonline.net | copyright infringement or illegal distribution? I think their case went south for the winter cause the lawsuit against someone putting out the movie, not taking it, is not copyright infringment.
it is illegal distribution | |
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pnh102
Reptiles Are Cuddly And Pretty
Premium
join:2002-05-02
Mount Airy, MD
·Comcast
| Good For the Judge I've always taken "the enemy of my enemy is my friend" approach to the RIAA. Given that the political leanings of many of the artists that are represented by RIAA member companies do not agree with my own, I am not only glad to see them lose, but I am even more glad that it is much harder to prove their cases now.
I am also glad that at least this judge has taken it upon himself to actually review his own work and admit that he made a mistake. But on a legal note, I always had my doubts that simply "making available" copyrighted works against the wishes of the owners by itself caused damage. If we follow the RIAA's logic, each illegal download would equal one lost sale (I don't believe that either), but if you cannot prove anyone downloaded anything, then how can you prove that any damages occurred?
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Jason Levine
Premium
join:2001-07-13
Albany, NY
| Re: Good For the Judge And even if we somehow accept that each illegal download equals one lost sale, then damages of $750 - $150,000 per download is still way too much. As I've said before, those fines were set back when home piracy was a fringe activity (VCR copying, tape copying) and the main concern was piracy outfits that would obtain one CD, copy it a hundred times, and then sell the copies on the street for a few bucks each. For outfits seeking a profit through copyright infringement, by all means go for the existing penalties. However, the law needs to be amended to make damages more reasonable for "casual infringers."
In addition, since the RIAA goes after uploaders, we can't be sure of how many downloads have occurred with each file. It could be one (the RIAA's own investigative download) or a thousand. To make sure that the damages have a financial impact, yet don't bankrupt the accused infringer, I would think that 10x the market value of the material is fair. So if 1,000 songs are shared illegally, the user would face a fine of 1,000 * 10 * $0.99, or $9,900. That's still a large fine to have to pay and would be a big deterrent, but it won't permanently bankrupt the individual.
Of course, with the RIAA lobbying to *increase* fines and to make the DOJ handle copyright cases, I'm not holding my breath that any sanity will come to the copyright fine structure anytime soon.
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Neyland85
join:2003-02-04
North Augusta, SC | But even if you downloaded it, can you prove you got the entire file from the one person and not just a fraction or a legal 'sample' amount? | |
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Jason Levine
Premium
join:2001-07-13
Albany, NY
| Re: Good For the Judge Remember that only uploads have been prosecuted so far. (Downloads are harder to prosecute and would be more expensive for the RIAA labels.)
So the issue is: If an RIAA investigator sees you sharing a song on a P2P network (assuming no permissions have been given to share it), how much are you liable for?
The RIAA would like the answer to be $750 - $150,000 per song. This would mean that someone sharing 1,000 songs would be on the hook for at least $750,000 (plus legal fees). This means that their $3,000 settlement offers would look very good and would get many takers. You don't go bankrupt and they don't need to take you to court. They also get to proclaim to anyone who'll listen how they caught such an awful pirate like you and you can't talk about it at all.
If the fee was 10x the cost of the song, the 1,000 songs shared fee would be under $10,000. Given the choice between a $3,000 settlement offer or a legal fight with a maximum fine of $10,000, more people will take the legal fight. This would tie up RIAA lawyers, cost the RIAA more money, and result in less RIAA wins. (Even the cases they did win in wouldn't result in enough money to financially justify the "sue everyone" approach.)
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-Jason Levine
Support a children's charity. Buy a calendar and/or a photo book. Shooting For A Cause | |
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footballdude
join:2002-08-13
Imperial, MO
| missing it All of you jumping on TK are missing the point. He didn't say the judge was an activist because he disagreed with the ruling. He said the judge issuing orders without being petitioned by either side was activism.
I disagree with that point, but all of you lobbing grenades his way are doing so under false pretenses.
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| Ahrenl
join:2004-10-26
North Andover, MA | Re: missing it Please, he offers zero value to any community discussion. We could just have a poster board at the top of each thread with his view, as you can have 100% certainty what it is. | |
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Iandme
@comcast.net | WHO CARES! Who cares who is who or who is what! Score one for the citizen! | |
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tapeloop
1959. I try to kick the ball. I miss.
Premium
join:2004-06-27
Airstrip One
| hm. said by LiamJunket :Reversing himself without any prompting from either participant in the case is almost by definition an example of judicial activism. No it isn't.
It's judicial responsibility.
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Desdinova
join:2003-01-26
Gaithersburg, MD | Ah Sweet Memories... Man, it's events like this that really make me miss the Taylor Troll sharing what I have no doubt would be enlightened thoughts on the judge's actions... | |
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RIAA's Only Court Victory Declared Mistrial
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