Sccts guy contradicts RIAA document

[Craig White]

On Sun, 2008-01-06 at 13:45 -0700, Chris Gehlker wrote:
> On Jan 6, 2008, at 10:44 AM, Craig White wrote:
> 
> > On Sat, 2008-01-05 at 22:27 -0700, Chris Gehlker wrote:
> >
> >> 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
> >> completely uniformed about IP issues and with little knowledge of big
> >> 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 listed to it and I don't think that Fisher did anyone any harm but
> > rather effectively stated the rationale behind his article.
> 
> The debate is over. We lost. Even such a leading light of the anti- 
> RIAA 'freedom fighters" as William Patry says"
> 
> "But despite Ms. Pariser's comments in the Thomas case (again if  
> accurately reported), in the Howell case, the RIAA is being unfairly  
> maligned. I have read the brief (and you can too here). On page 15 of  
> the brief, we find the flashpoint: "Once Defendant converted  
> Plaintiffs' recordings into the compressed .mp3 format AND they are in  
> his shared folder, they are no longer the authorized copies  
> distributed by Plaintiffs."
> 
> I have capitalized the word "and" because it is here that the RIAA is  
> making the point that placing the mp3 files into the share folder is  
> what makes the copy unauthorized. The RIAA is not saying that the mere  
> format copying of a CD to an mp3 file that resides only on one's hard  
> drive and is never shared is infringement. This is a huge distinction  
> and is surprising the Post didn't understand it. The brief also goes  
> on to allege in great detail that the copies placed in the shared  
> folder were actually disseminated from Howell's computer, thereby  
> stating a traditional violation of the distribution right, even aside  
> from the making available/deemed distribution theory."
> 
> It is here and it comes at the end of a long page attacking the RIAA  
> but he did say it:
> <http://williampatry.blogspot.com/2007/12/establishment-press-takes-riaa-on.html 
>  >
> 
> [Here I snip some argument that the RIAA really does want  to take  
> away our right to rip CDs for personal use and that they may well try  
> to do so in the future]
> 
> I agree completely and have stated as much previously in this thread.  
> That is precisely why Fisher's crying wolf in the Howell case is going  
> to hurt us when the RIAA actually does make their move.
> 
> > You are confusing him to be an advocate when all he really is, is a
> > journalist.
> 
> Once he agreed to debate on national radio, he became an advocate.
> <http://dictionary.reference.com/browse/advocate>
----
Just to get last out the way first, he is still a journalist. His role
didn't change in the substantive way that you suggest and nothing in the
definition you provided suggests otherwise.

Now, onto the meat...

It's not over until we decide it's over (Animal House)

Seriously though, the music industry (RIAA & patrons) versus the people
is not over, it's obviously barely started because the RIAA is hell bent
on suing their customers because they are committed to a business model
that is failing. [1]

It's not over because the recording industry criminalizes all sorts of
activities that are commonplace, not just the minor issue at discussion
at the moment. Whether it's sampling music or their absurd notions of
public performance, they have enraged the public and the public simply
doesn't respect them. [2]

It's not over because of some page 15 on some motion opposed by a
hapless sack that doesn't have legal counsel.

You (and Patry) seem to be focused on this page 15 and despite the fact
that isn't actually the issue, it's an incomplete picture and I'll
demonstrate why...

Nowhere does plaintiff state at what point the defendant had legal
copies.
Nowhere does plaintiff state at what point the defendant changed them
into unauthorized copies.
Plaintiff only states the conditions on page 15 are all that is
necessary to prove infringement...no more and no less.

In this particular legal arena, if defendant had competent counsel,
counsel *might* consider probing those questions for a declarative
answer, probably because defendant denies ever putting said files into a
shared folder. If the judge asks for a declarative answer to those
questions because defendant Howell doesn't have counsel, I would be
impressed.

The base question is really simple and was asked as simply as possible
on the NPR show...can someone legally have digital copies of CD's that
they possess?

But in the battle of public opinion, RIAA had ample opportunity to
answer that specific question, especially in light of the muddy waters
created by Jennifer Parisier's testimony and the subsequent denial by
RIAA's Sherman on NPR. The RIAA's Sherman was unwilling to provide a
clear answer. 

If nothing else, the NPR radio show proved definitively that author
Fisher's article was correct in its assertion, you may have liability if
you store digital copies of music on your hard drive even if they are
copies of CD's that you legally own. NPR's answer, just to refresh your
memory..."We have never pursued anyone for having a digital copy of
music taken from CD's that they own"
...
...
...
I'll add it...YET

Craig

[1] RIAA Employees walk out...http://www.p2pnet.net/story/14528

[2] Fair and Balanced network disses
you...http://www.youtube.com/watch?v=CpJKJPab8hw
    doesn't get worse than this