On Wed, 2008-01-02 at 09:33 -0700, Chris Gehlker wrote:
> On Jan 2, 2008, at 7:58 AM, Craig White wrote:
> 
> > by the way, you referenced an order granting summary judgement that  
> > was
> > vacated by the same court just a few days later...
> >
> > http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_071004OrderVacateOrder
> >
> > Just sayin...
> >
> > Craig
> >
> > (unless the dude gets competent counsel, the outcome is unlikely to
> > change)
> 
> Aha!, I guess I was stupidly assuming that the files were in reverse  
> chronological order because I saw the summary judgement at the top. I  
> see now that Howell did finally argue that Kazaa was sharing files  
> behind his back and that on that basis the judge vacated the summary  
> judgement. I see as well that the RIAA is trying to make him out to be  
> a liar, arguing that even if Kazaa moved the files to the shared  
> folder, he could clearly see that they were there and that he deleted  
> files that would have shown he moved them there himself or authorized  
> Kazaa to share files in other folders.
----
where on earth did you get the idea that the files actually were
physically moved? You are assuming facts that are not supported by the
evidence and even worse, you already know that the 'folders' that a
program considers accessible or in this case shared, can be dispersed
anywhere. It's a concept called 'virtual folders', I'm disappointed that
you seem to struggle getting your head around the concept.
----
> 
> > (unless the dude gets competent counsel, the outcome is unlikely to
> > change)
> 
> He may be screwed already if the RIAA can convince the judge or jury  
> that he is a liar. I've actually been on a jury in a civil trial where  
> we became convinced that the plaintiff was in the right legally but  
> the  defendant was right ethically and that the CEO of the defendant  
> company was more honest on the stand. We awarded the plaintiff $100.  
> I'd like to see the  RIAA 'win' a few cases that way.
----
He's already screwed because he hasn't been able to retain competent
counsel and has acted pro se.

The curious thing is that plaintiff revised their motion for summary
judgment in light of the jury instructions provided in Capitol v. Thomas
to consider those absurd notions that the crime exists merely by
possessing copies of those files and by installing file sharing software
(in this case, kazaa) on the same computer without providing evidence
that anyone has downloaded said files. This is the point that is driving
this entire debate (and the point driving the WaPo article and countless
other blogs, etc.)

As for defendant going without counsel, his inability to make the case
that the plaintiff can't provide proof of ownership simply wasn't and
won't be made. That is obviously a real problem (proof of ownership) for
the plaintiffs because of the tortured methodology of the industry at
large because the industry is structure to strip the rights away from
the artists from the outset. Surprisingly, this parallels the problems
with the mortgage industry these days and many of the foreclosure
proceedings are being tossed out simply because the plaintiff's cannot
prove that they represent the true party.

Craig

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