Sccts guy contradicts RIAA document

[der.hans]

Am 05. Jan, 2008 schwätzte Chris Gehlker so:

> On Jan 5, 2008, at 7:40 PM, der.hans wrote:
>
>> Am 04. Jan, 2008 schwätzte Chris Gehlker so:
>>
>>> Your characterization of the plaintiff's position and Howell's is
>>> accurate as far as it goes but it still completely misses the point.
>>> Fisher concluded, in the teeth of the evidence, that the RIAA was
>>> suing Howell for merely ripping files regardless of whether he shared
>>> them or not. He  published an inaccurate and sensationalized piece
>>
>> Was it inaccurate?
>
> Absolutely. Your argument below really rests on:
>
> "If $Defendant_made_electronic_copies is not required for setting
> $songs_are_no_longer_authorized_copies it should not be in the test."
>
> But Fisher die not elide the condition before the "and" from the
> quote: he elided the part about the files being in the shared folder.

One could say he left it off because that part wasn't trying to extend
case law. Fisher was covering attempts to make new claims restricting fair
use. He wasn't covering whether or not it's illegal to distribute
copyrighted materials without permission of the copyright holders.

> So by your argument the part he elided is the *most* meaningful part.

Actually, it's irrelevant. It's another matter completely.

I do see your point that he wasn't covering the entire case. But, his
article was about "the industry is taking its argument against music
sharing one step further" not about all of the specifics of the cases
against Howell and Thomas.

> He left in the part about wearing purple and left out the part about
> shooting the president. He then warned all the people who like purple
> that the FBI and the Secret Service were out to get them.

Ah, but everyone already knows it's illegal to shoot the president. He was
covering the part that was added in the case. The part that was new was
having worn purple on a Thursday.

By including purple on a Thursday in the test Schwartz was including
that as part of the illegal activities. Now, I suppose one could look
at the test and say it might mean that shooting the president is only
illegal if done in conjunction with wearing purple on a Thursday. That
doesn't explain the whole section on wearing purple on Thursday which is
completely irrelevant in the context of the document if it isn't being
counted as an illegal act.

I am sure that Alan Cox can write some C code that I don't understand. I'm
just as certain that a lawyer can include things I don't catch in a legal
document.

> The second  problem with your argument is that copyright is,
> interestingly, all about the right to make copies. If you don't make a
> copy, you can't conceivably have violated anyones copyright. But the
> converse is not always true. There is a bunch of law, both case law
> and explicit law, that lays out situations under which you can make a
> copy without violating copyright. For archival purposes, for personal
> use, for purposes of criticism or parody are some permitted uses that
> come to mind. So the RIAA really does have to assert both that Howell
> made copies and that he didn't make them for some permitted reason
> such as listening to them on his iPod.

Or they have to build up more recent case law showing that individuals are
no longer allowed to make copies under any circumstance.

It is possible that Atlantic was trying to move that direction in this
case. It is also good that the community caught it and got the record
companies to back-pedal.

I haven't listened to the Talk of the Nation episode yet, so I can't speak
as to whether or not that helped the RIAA. For now I will take your review
that the RIAA turned it to their advantage.

> Neither you nor I nor anyone on this list is the target of the RIAA's
> PR campaign. We are never going to support the politicians that they
> have in their pockets and they are never going to allow a Linux user

Hmm, I know several people who've been on this list that supported Orrin
Hatch, who used to be the RIAA's poster boy.

Besides, in this we're in the minority. If we're not careful we'll get run
over by the hordes of apathy.

That's why I suggested we try to help Howell. I don't support illegally
sharing copyrighted works. I also don't support large corporations
with deep pockets suing people into oblivion. I especially don't
support the big companies if they're using that case to try to cause me
problems. Trying to curtail fair use is definitely something that causes
me problems.

> to sit on the jury for one off their cases. To understand the damage
> that Fisher has  done us you have to put yourself in the frame of mind
> of  a typical NPR user: fairly bright and curious but almost

I probably qualify as a typical NPR listener.

> completely uniformed about IP issues and with little knowledge of big

Hmmm, most NPR listeners I know have decent knowledge of big media, which
is why they're NPR listeners rather than viewers of big media news :).

> media. Then, in that mind-frame, listen to the audio file of the
> debate. If you can do that, I'm sure you will see that Fisher did
> indeed do us harm. If you can't do that, nothing I say will persuade
> you.

I will try to listen to it tomorrow.

ciao,

der.hans
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