Not only was there "no question" in Tasini that copies were distributed, but:

(1) The defendants explicitly conceded so in the trial court, in their summary judgment papers, and

(2) The trial court and Supreme Court opinions both limit themselves to actual distribution. The Second Circuit's opinions seem to do so, but really are not that clear.

And, of course, Mr Thomas would have done better to quote the whole sentence from Nimmer — or, better yet, the whole paragraph: That would have made excrutiatingly clear that the section in question is referring to a specific right unique to phonorecordings, which cannot "bind" anything relating to audiovisual recordings... even leaving aside Professor Patry's well-taken point on the ability of a treatise to bind anyone.

National had breeched a software-licensing agreement

Really? A car rental company... breeched? I'm having a hard time picturing that- I have a mental image of Shamu painted black and yellow, but on second thought, I think that's actually Hertz.

Steve, I just quoted what they said. Perhaps the PFF wears short pants.

When I compare the PFF's brief to the EFF's, I have to wonder: should the PFF have been required to disclose the fact that it's primarily funded by the plaintiffs? Sure, that's on their *website* but their briefs make no such disclosure unless I skimmed past it. The EFF, conversely, has an entire section explaining who they are and why they're filing an amicus brief.

It doesn't help that the PFF name is so confusingly similar to the EFF.

- C15

In response to the other Anonymous posting and the discussion of PFF funding -

If you and Patry are right that a group's funding taints its positions, then surely the identity of EFF's funding is essential to understanding EFF's biases. However, contrary to your assertion, I can't find a list of EFF funders in either its Thomas amicus brief or on its website. Is EFF embarrassed to reveal the actual identity of its funders? Could Google, CE companies, and other piracy profiteers be among its funders, and could their investments affect EFF's positions? I am sure that, being a fair-minded, intellectually honest individual, you will consider EFF's failure to identify its funders as of even greater concern that PFF's upfront disclosure.

Last Anon, I don't think funding taints anyone. I think disclosing funding is important, and my complimenting PFF on this was a genuine compliment. I have no idea why anyone thought otherwise.

EFF is not a trade association, though. It was not set up to and does not operate for the benefit of specific companies. In line with this, I believe EFF generally receives general donations. Except at the Supreme Court level, on the Thomas case, it is typical for amicus who have received financial assistance to disclose that. I am unaware of anyone who provided EFF financial assistance on their brief. Anon, I think you are trying to make something out of a "failure" to disclose nothing.

Mr. Patry,

I apologize for attributing to you the view, expressed by the other Anonymous, that funding taints the views of an organization.

However, I think it is fair to say that you appear to view PFF as a corporate shill, while you view EFF as a public interest organization with purer motives.

I think EFF is no more pure than PFF in its policy positions, and since it doesn't disclose funding, it may be less pure.

PFF is no more a trade association than is EFF. PFF is a think tank/policy organization that gets funding from disclosed corporate interests. EFF is a policy/litigation organization that gets funding from undisclosed interests. PFF was not set up by corporate interests and doesn't operate for their benefit, but certainly the positions advocated by its scholars are strongly supported by certain segments of the business community (IP owners, media companies), and those business do provide funding to PFF. Similarly, EFF was not set up by corporate interests and doesn't operate for their benefit, but the positions it takes tend to reflect views that certain segments of the business community (Internet and CE companies) strongly support. However, since EFF doesn't disclose its funding sources, we can only speculate whether those technology/CE companies or their corporate officers provide funding to PFF. Perhaps you could let us know whether Google is an EFF funder.