Sccts guy contradicts RIAA document

[Craig White]

On Sat, 2008-01-05 at 07:12 -0700, Chris Gehlker wrote:
> On Jan 4, 2008, at 9:34 PM, Craig White wrote:
> > What I would argue with is that you have re-phrased, recharacterized  
> > the
> > authors statement which I have quoted to you twice and it's obvious  
> > that
> > continually re-quoting his statement will not get it through your head
> > but specifically...NO WHERE DID THE ARTICLE EVER STATE (these are your
> > words from above) "in the teeth of the evidence, that the RIAA was  
> > suing
> > Howell for merely ripping files regardless of whether he shared them  
> > or
> > not."
> >
> > I suppose it's necessary for you to twist the authors words in order  
> > to
> > prove what he didn't ever say.
> 
> I think I'll simply reference this:
> <http://www.news.com/8301-10784_3-9839897-7.html>
----
not unlike the article that you gave us early on from cio magazine.

While I would agree that I wish Mark Fisher could have articulated the
issues with greater precision, that seems to be a frequent problem for
mass media outlets, especially on issues surrounding technology. If NPR
had invited Roy Beckerman to debate the spokesman for the RIAA, the
outcome would have been different because Beckerman is clearly capable
of dissecting the legal issues surrounding this controversy. I guarantee
you the RIAA's Sherman would have never have debated with Beckerman.
Bullies don't enter into a fight that they know going in that they won't
win...that's a rule that bullies understand. Hillary Rosen saw her
reputation and her legal capital sinking with the RIAA and knew it was
time to bail out. Note how much effort they are spending trying to
rehabilitate the Sony lawyer, Pariser, for her comments, under oath...

The author of the above link, like you is caught up with the fact that
the defendant's files were shared by a methodology that fosters illegal
distribution but it seems clear that defendant is not now, nor has ever
disputed that assertion by RIAA. What defendant disputes was the
characterization that it was by intent. Defendant states that the
sharing was circumstantial. The article by Mark Fisher focuses on the
notion that RIAA argues by it's motion, that circumstances are entirely
irrelevant, that the fact that his legally authorized copies became
unauthorized copies by virtue of his installation of file sharing
software.

The fact is that most of the public is guilty of all of the same
activities with the exception that most of us don't install KaZaA
software. We do have legally authorized copies and software that
automatically makes them shared and the only distinction is the actual
sharing protocols. The RIAA has demonstrated that those distinctions are
not material to their intent to prosecute their interests. If that
doesn't send off your danger alarms, so be it but it clearly sets off
alarms all over the world and the Washington Post article is but one of
the hundreds of alarms.

It's hardly surprising that there are apologists or bloggers or
publications that also take lots of advertising revenues are supporting
the RIAA position. In the end, attack the messenger...lovely, nice
hatchet job.
----
> > Now, what I will say...on page 8 of same supplemental motion for  
> > summary
> > judgment, the plaintiffs have now added..."The act of making  
> > copyrighted
> > sound recordings available for electronic distribution on a peer-to- 
> > peer
> > network, without license from the copyright owners, violates the
> > copyright owners’ exclusive right of distribution, regardless of  
> > whether
> > actual distribution has been shown."
> >
> > Now, what I will say...on page 15 of same supplemental motion for
> > summary judgment, the plaintiffs have now added..."Once Defendant
> > converted Plaintiffs’ recording into the compressed .mp3 format and  
> > they
> > are in his shared folder, they are no longer the authorized copies
> > distributed by Plaintiffs."
> >
> > Now, what I will say...on page 18 of same supplemental motion for
> > summary judgment, the plaintiffs have now added..."Defendant’s bald
> > assertion that he did not realize these sound recordings were being
> > distributed from his KaZaA shared folder to other KaZaA users is both
> > belied by the facts and irrelevant under the law."
> >
> > Simply put, RIAA, through its attorneys is making clear that simply
> > because these mp3 files, put by defendant on his hard drive by ripping
> > them from his own copies of CD's constitute the basis of his criminal
> > action because they were being shared, regardless of any  
> > circumstances.
> 
> So we agree.
----
We undoubtedly agree about something but by the time you rephrase it in
your own words, probably not, much as you disagree with the assembly of
the issues by Mark Fisher
----
> > Simply put, it seems clear to me that it's that most people who have
> > ripped music files have them in a folder that is shared some way, some
> > how dependent upon OS and network configuration and whether downloaded
> > or not, constitutes a legal infringement/liability.
> 
> I simply think you are wrong as a matter of fact unless by "shared in  
> some way" you mean shared within their  household. If that's what you  
> mean,  then your assertion is irrelevant.
----
I would agree that my assertion is irrelevant in that I have no control
over what the RIAA considers relevant and it is their opinion and only
their opinion that is relevant that has them select the next winner for
their train wreck.

The fact that that I am alarmed by the slippery slope of what is
considered to be an authorized copy has become threatened by virtue of
the RIAA's sliding interpretation of their burden of proof is entirely
relevant to me and obviously to a Washington Post writer and many, many
others.
----
> >> You, I , the plaintiff and the defendant all
> >> agree that whether the music files were the KaZaA shared folder is a
> >> significant issue.
> > ----
> > No, clearly if you read the above, understood plaintiff's position,  
> > you
> > would see that plaintiff is suggesting that whether the music files  
> > are
> > in a KaZaA shared folder is no longer the issue at all. It was  
> > however,
> > significant in their original motion for summary judgment but the
> > amendments claim that this is no longer their burden.
> > ----
> >> You, I and the defendant but not the plaintiff all
> >> agree that if the files were in the shared folder it is  a  
> >> significant
> >> if they  came  to be there with the  knowledge and consent of the
> >> defendant.
> > ----
> > Not at all, and so says RIAA, likewise see above. At best, RIAA (and  
> > by
> > extension the court) might consider it a factor to mitigate what will
> > obviously be an award for the plaintiff
> 
> Did you notice the phrase "but not the plaintiff"?
----
I probably missed you conceding the point, yes. The point is an
extremely large one however since the RIAA has declared that they
consider the infringer's intent to be inconsequential.
----
> >> The RIAA says at one point that this is not a significant
> >> issue but I think we can agree that they are being dishonest.
> > ----
> > You are on a roll for suppositions what people think but once again,  
> > you
> > want to ignore what people say and presuppose what you want to  
> > believe.
> > I think you fail to recognize that is now their position.
> 
> So you think the  RIAA is honest? I have to wonder why you continually  
> take their side. ;-)
----
I don't want to be put in the position of evaluating RIAA or Howell's
honesty, first because of the uneven playing field and second, because
that deflects from the main issue raised by the article, which is not
now, nor has ever been whether the defendant illegally shared the music
via KaZaA, but rather the standard of proof that is the burden of the
RIAA, which RIAA asserts to be substantially lower with the advent of
the jury instructions given by the judge in the case commonly known as
Capitol v. Thomas.
----
> > You haven't formed an opinion on this? This is only the reason for the
> > entire story in the first place.
> >
> 
> Not at all.
----
in the face that Mark Fisher has clearly stated that this was the issue
he was trying to make, you want to deny that this was his intent. I
honestly don't know what to say here.
----
> 
> > You were so focused on the issue of whether Howell had KaZaA and music
> > files in some shared KaZaA folder that you have missed the story
> > completely...the RIAA simply doesn't care and doesn't consider it
> > necessary to prove intent, the existence of KaZaA (or any file sharing
> > mechanism), only that these files are on your hard disk and that they
> > are shared.
> 
> I have made it abundantly clear that I know this is the RIAAs stated  
> position but  I simply think they are lying.
----
Whether RIAA is lying about anything isn't anyone's assertion but your
own. It's not connected to the issue driven by the Washington Post
article by Mark Fisher. RIAA honesty was not referred to in any way.

Reminds me of the movie "About Last Night"...

Bernie: "A shitload of Fiestaware. All yours at the low Litko discount."
Danny:  "How much?"
Bernie: "100% off."
Danny:  "Bernie, I can't do that."
Bernie: "Come on, I can't do better than that - I can't - I stole it."
Danny:  "You did not."
Bernie: "I tell you I'm a thief, and you call me a liar."
----
> > of course they are hypotheticals are always ridiculous until they
> > actually happen
> 
> Not at all. Reasonable testing requires reasonable hypotheticals.
----
If by reasonable, you mean hypothetical situations that occur every day,
I am quite certain that the hypothetical situations I proposed would
meet that criteria. I suppose your definition of reasonable and my
definition of reasonable might differ...this reminds me of the dialog
from 'So I Married an Axe Murderer'...

Charlie: "For example, how many people have you brutally murdered?"

Harriet: " 'Brutal' is a very subjective word."
         " What's brutal to one person might be reasonable to somebody else."
----
> > Lastly, go for the honesty test...if you have a ripped CD and
> > accidentally drop the original 'authorized' copy and break it, do you
> > delete the mp3/m4a/ogg version from your hard drive? If you have a  
> > copy
> > of your entire CD collection on your laptop and it gets stolen, must  
> > you
> > throw away your CD's?
> 
> Since it is very explicit in copyright law that if I actually break  
> the original I am allowed to use the back-up, or course I don't. It is  
> also very  clear that if someone steals my laptop, it is the thief who  
> is violating copyright. But yes, if I give away a CD I actually  do  
> delete all the ripped  copies. I simply do not distribute unauthorized  
> copies.
----
evidently I am not versed in the very explicit copyright law as you
are...
----
> A young idea is a beautiful and a fragile thing. Attack people, not  
> ideas.
----
interesting quote attached to the bottom of your e-mail

Craig