October 9th, 2007

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RIAA Defenders: They Sue To Keep From Being Sued


This article deals with the recent victory by the RIAA over Jaimme Thomas,a single Mom making a bit more than $35K/yr. A jury found that Thomas was guilty of violating the copyrights of various musicians by publicly distributing them via peer-to-peer software and awarded $220K in damages for 24 songs whose copyrights were so violated.

What is troubling, and what has made Thomas something of a cause celebre among the anti-RIAA crowd, was that the jury did not find that any file swapping actually occurred. Rather, as a function of the instructions permitted by the judge (provided by the RIAA's lawyers and approved over the objections of Thomas' counsel), the jury could find willful violation if Thomas simply made her files available for copying, even without evidence of actual copying.

Perhaps unsurprisingly, the RIAA has taken something of a PR beating for this. Asked why the RIAA pursues such law suits, especially in the face of evidence that these lawsuits have little or no impact on illegal file sharing and actually hurt the RIAA's legislative strategy, one defender of the RIAA argued that the RIAA had to file such suits to avoid legal liability.
"They have to do everything they can to prevent piracy," Garland said. "Or else how long will it be before the estate of Cole Porter or The Beatles file suit against you. The RIAA acts as agents for hundreds of thousands of artists and for millions of songs. They have to demonstrate to the artists and also to Wall Street that they are doing everything that they can to fight piracy. You can't just say we gave up protecting their work. I don't think they have the option to do that."

Like many arguments that invoke the liability boogeyman, I find this highly suspect. The notion that the estate of Cole Porter would sue the RIAA that it made a rational determination that this strategy did not further the interest of its members, and therefore left it to the discretion of individual rights holders to pursue such lawsuits, strikes me as absurd. While anyone can sue, of course, this case strikes me as such a dog that I cannot imagine it driving RIAA policy.

The RIAA files these suits not because they have to, but because they are fresh out of ideas and can't think of anything else. Rather than continue to enable them in their folly, their members and supporters should be urging them to come up with other mechanisms to ensure that rights holders get compensated.
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Clark Byce, Harvard Law Royall Professor of Law Emeritus, BU Law Professor Emeritus, RIP

I was saddened today to learn of the death of Professor Clark Byce. Byce taught at Harvard Law for many years before moving to Boston University Law. He counted several Supreme Court justices among his former students, as well as numerous judges of lesser courts and other leading legal lights. He also co-wrote one of the standard textbooks on Administrative Law. Although he has always denied it, there is considerable speculation that Byce was the model for Professor Kingsfield in The Paper Chase.

Byce turned 70 when Harvard still had mandatory retirement. He therefore became a professor emeritus at Harvard Law and accepted an offer to become a full professor at Boston University Law, where he taught first year contracts and administrative law. As a result, I was privileged to have Byce for first year contracts (he had stopped teaching ad law by my second year, alas). Amusingly, Byce had also taught my father at Harvard Law (or so Byce maintained; my father, a fellow member of the BU Law faculty, denies this).
If Byce were the model for Kingsfield, you could never prove it by me -- or any of the hundreds of students who positively adored him. (Byce always claimed to have hated Kingsfield and thought that Kingsfield was a phenomenally poor teacher.) Certainly Byce believed in Socratic method, but his personally style (at least when I had him) was that of the crotchety grandfather or great uncle whose gruff manner is always tempered by genuine affection and good will. His class was always full and always popular. When the Administration tried to move him out of first year contracts, there was a student revolt.

As an arrogant young student, utterly unintimidated by law professors, Socratic method, or public speaking, he and I had a spirited relationship in class. Consider this example: Byce: "Mr. Feld, your interpretation is plausible, but what do you say to the fact that courts have consistently rejected that interpretation for the last 50 years?" Me: "I yield to the Professor's superior wisdom and experience." Byce: "Wiseass."

Outside of class, Byce was accessible, friendly and supportive. He had a sign up sheet for students who wished to go to lunch with him, and would take a small group to lunch once a week. He not only kept office hours, he gave students his home phone number. I can recall one time my study group called him before the exam to ask him to help us on some particular thorny issues. Somehow, I can't imagine Professor Kingsfield taking calls from three confused and panicked law students on the eve of an exam on a Sunday, and patiently explaining the arcane points of contract law.

Byce helped me get my first job in the summer between first year and second year of law school by recommending me to the Boston University Office of General Counsel (the BU OGC held (and may still hold) 3 spots open for the top law students in first year, and hires based on a combination of grades and professor recommendations). Byce, along with Professor Archibald Cox (another Harvard Law emeritus), served as my faculty references out of school.

I did not stay in touch much after law school (as those who know me can attest, I'm bad at that). The last time I saw him was about 4 years ago, when I was doing a round of interviews at the annual Association of American Law Schools "meat market" in the interest of becoming a law school professor (an ambition that faded, in part from lack of interest on the demand side). A friend from Harvard Law also doing the rounds told me Byce had come and was visiting in the Harvard suite (all the law schools reserve rooms for use of their alumni). I came up to visit (they under the mistaken impression that if I had studied under Byce, I must have been a fellow Harvard Law alumn). When I entered, he was holding court in the center of a cluster of former students, looking the very picture of the dignified Professor Emeritus.

"Hello Professor Byce," I said. "I don't know if you remember me from first year contracts." It had been ten years at that point, after all, and I am only one of literally thousands of students he had taught.

"Of course I do Mr. Feld," He said. He then gave a very pronounced and artistic shudder. "How could I forget?"

We spent a few minutes catching up and exchanging pleasantries. As usual, he had a fund of advice for me on my job search -- the chief of which was that if I wanted to go into teaching law, it should be because I really loved teaching. Anything else and I would be wasting my life and, more importantly, those of my students as well.

While I'm sorry I did not see him again, it makes a pleasant final memory. Certainly Clark Byce followed his own advice. He loved teaching for its own sake, and continued to do it as long as he could manage it physically. I, as I am sure will thousands of other former students, will miss him.