Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Does The Most Respected Federal Appelate Judge Share Copyrighted Music Files? If So, Will The RIAA Go After Him?

I think Alex Kozinski is one of the best judges this nation has.

He is getting a lot of attention for storing humorous porn on his computer while presiding over an obscenity trial - but it turns out he may have had a nice stash of ripped MP3's on his site as well.

As the L.A. Times notes:

The judge emphasized that he never used appeals court computers to maintain his site.

The presence of copyrighted music files on Kozinski's site raises other issues.

More than a dozen MP3 tracks were listed, and they were neither excerpts nor used to illustrate legal opinions, which experts said might have qualified their copying as "fair use." The artists included Johnny Cash, Bob Dylan and Weird Al Yankovic.

Uploading such files could violate civil copyright laws if friends or members of the public visited the site and downloaded the songs, according to attorneys who have litigated file-sharing cases for both copyright holders and accused infringers.

Even if no one downloaded the songs, just making them available might run afoul of the law, said Corynne McSherry, staff attorney at the nonprofit Electronic Frontier Foundation, which often argues the other side of such issues.

Late last year, three of Kozinski's Circuit Court colleagues noted in a ruling that "the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works," a violation of copyright law if done without permission.

"For him to actually be held liable would take some further investigation, but I think it's possible," McSherry said. "It's a strange story. It's surprising to me."

Kozinski was not asked in the Tuesday interview about the music files, and he could not be reached for comment Wednesday afternoon.

An attorney who has had a long running dispute with Kozinski maintains over at Patterico.com that Kozinski didn't just have MP3 files, but was actively sharing them through file sharing software. [Disclosure: I am also a guest blogger at Patterico.com]

Warning: The allegation of music file sharing at this post at Patterico.com also contains some adult humor related to the porn allegations.

I have mixed feelings on a number of levels:

1. If it turns out to be true that Kozinski knowingly shared music through peer-2-peer networks, that will make him even more endearing to me. More power to ya Judge!

2. As I have indicated before, Kozinski has always had a much more balanced view of intellectual property law compared to many others in legal circles. He has warned about how IP and 'publicity rights' can encroach on free speech when they are interpreted too broadly. He also has a healthy respect for fair use (unlike some of his contemporaries on the bench). Perhaps this episode will inspire him to start aggressively challenging conventional IP jurisprudence and enforcing fair use rights even more? [A long shot admittedly - but dare to dream....]

[Update: As Patterico notes here, Kozinski doesn't always come down on the side I would like him to as a matter of public policy. But I maintain that he is still better than most in this field.]

3. Despite my adoration here, part of me would like to see him aggressively prosecuted - and then have the Feds and the RIAA conduct a wide witch hunt against every judge and government official that might have 'unauthorized' MP3 files stored on their computer. Once the Washington establishment is finally confronted with their hypocrisy and are shown just how widespread this phenomenon is, it might force their hand to actually change the law in a positive direction. It has been said that if every Congressman were vigorously prosecuted for solicitation each time they engaged in it, prostitution would be legalized overnight. The same principle applies to file sharing.

Perhaps these last few speculations are just wistful daydreams on my part. I'd hate to see Kozinski be the one martyred for the cause in any event. But this whole episode still only gets me more upset with the copyright/RIAA status quo - not with America's greatest appellate judge.


So does this mean that the fastest and cheapest method for copyright reform would be to buy the content company one can buy the cheapest, figure out which congressmen are infringing and then start suing them all for loads of money?
Kozinski, who has recused himself from this trial, is ably defended by Larry Lessig on his blog link here which indicates that much of comment on the judge is badly mistaken or malicious.
You say Mr Alex Kozinski is ably defended by Professor Lessing(from Stanford). Before who, the world, the UN, the World court ? A blogger loosely floating around, & flinging out stuff from the seat of his pants, is not exactly making any of record appearance. Lessing has accused Mr Sanai of some massive dicey stuff, and he(Professor L) would be precluded from being an expert witness due to any antics on the Blog--o-sphere. It is a parodox, on the one hand you elevate Kozinski to some mythical figure of the highest on the high in the U S Appeal court system, then, you go into he should be nailed for violating the law. So, is the law blind, if the most high on high and powerful, are violating the law(as you suggest) is that pass city, and look the other way.(by those charged with apply the law even handed, equally--the enforcers) Doesn't that do grave damage to the U S justice System, it is almost a statement if you are powerful, and a big shot, then you get an exemption like the Law does not apply, some ABOVE the Law standard. Isn't that a damaging statement on the USA legal system, are you sure you want to keep that as your overview on the matter, or adjust it, in view of its implications.

Oh come on, you think it's only people in high places that ignore copyright? They are simply more visible than the rest of us, if anything, they follow the law better.

Among those who can keep a low profile (ie get away with it), virtually no one takes copyright seriously. It's not like there is any feeling of immorality associated with copying.

Yes, but if one breaks the law, and that person is a federal appeal court judge, and he is being reviewed by other federal judges, then of course, the law does not apply, it is the law of the powerful live by different rules.(standard). Or---is it ? The Judge is the one who ratted himself out, sent the matter to be reviewed by other judges. In a digital world, what is copy-righted, and what is fair use, and what is just digital void material, where no recoppy restriction applies. The digital world is reorienting society. However, why didn't the judge just do his job, and not throw his chambers into some circus mode, as if he was seeking out all the undue attention, like he can thumb his nose at the powers that be, & be Mr smutty, while he judges others. Is he fit to judge others, in view of his antics ? Well, I don't have to decide that, that is why the 3rd Circuit Judicial Council is paid all those big bucks.(above our paid grade--and power on) SAD, Mr Cow smutty was on the tax payer doles, while whipping around the cyber wiring in the Court House networks, linked to his other pursuits, which is unclear at this point, full extent on the all of it, all to be reviewed in secret in the 3rd Circuit. As to the subject person following the law better, that is undecided, so it remains to be seen if that is so.

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