On Jan 4, 2008, at 3:12 PM, Craig White wrote:
> Mark Fisher's interpretation is what it is. The referenced page
> however
> is simply an advocacy of the plaintiff's position and the defendant's
> position is clear, that those files were never in a shared folder that
> was designated for sharing.
>
> While the plaintiff says it was, the defendant says it wasn't and it
> is
> up to the trier of fact to decide who is telling the truth. If you
> were
> to give the defendant equal weight to his arguments, then there's no
> way
> to come to a conclusion other than the one that Mark Fisher came to.
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
based on that conclusion. You, I , the plaintiff and the defendant all
agree that whether the music files were the KaZaA shared folder is a
significant issue. 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. The RIAA says at one point that this is not a significant
issue but I think we can agree that they are being dishonest. Juries
don't give out big awards to punish people who make innocent mistakes.
If we are all right, then Fisher is wrong. The conclusion is
inescapable.
> Moreover, what cannot be dismissed is that the plaintiff moved the
> goalposts from their original brief for summary judgment and this
> supplemental brief for summary judgment and it's clear that the
> difference is the burden of proof which does effectually state that
> the
> presence of the mp3 files, without evidence that anyone has actually
> downloaded them constitutes the unauthorized use of plaintiff's copy
> righting material.
This is a completely different issue. The RIAA asserts that there is
case law establishing the principle that they are allowed to presume
that the files were downloaded if Howell made them available for
download. They also assert that their agent actually downloaded 11 of
them. If Fisher's characterization of their position were correct,
none of this would be an issue.
>
>
> All of your protestations notwithstanding, that represents the eye of
> the storm in this story...the goal posts have moved, plaintiff is
> claiming infringement based upon a significantly reduced standard.
> Duh...big story.
I actually have not yet formed an opinion on this issue. I am merely
convinced that they didn't move the goal posts so far as to assert
that merely ripping songs for personal use gave them a cause of action.
> hmm...I can't question your motives for asking why you have taken
> plaintiff's side in this controversy but you are perfectly justified
> in
> questioning my motives by suggesting that I am attempting to frighten
> you (front loaded with that Reagan gem...there you go again...nice
> touch, I noticed).
I haven't taken the plaintiffs side.
> Curious though...you assume that Howell didn't preserve evidence (and
> used allegedly) because you knew that was an unfounded assertion by
> plaintiff but it's clear that by your own conclusion that you don't
> believe in his innocence.
I was very careful to say that the RIAA asserted that Howell didn't
preserve evidence and that *if* the plaintiff's assertions were
correct then Howell was in trouble. I was even careful to put the
RIAA's usage in quotes so that no careful reader would mistake it for
my opinion. I do think that this is a very important issue and I
eagerly await some factual information. I am slightly predisposed to
disbelieve Howell because it would explain his inability to obtain
counsel and I am slightly predisposed to disbelieve the RIAA because
they have a history of dishonesty. At this point I'm actually leaning
toward believing Howell.
> I thought I laid a very thoughtful predicate for the hypothetical
> scenarios...it is the basis for creating law...you have to
> hypothetically project the extreme possibilities to determine whether
> the decisions are fairly applied. I think that most test suites for
> programmers operate using that same principal. It's entirely logical
> and
> it's ensures fairness. Your problem with those hypothetical situations
> is that they expose the fault in your statements and conclusions.
My problem was that they were ridiculous and simply showed how far off
the mark you could get by following a chain of hypothesis when you
know absolutely nothing about how my network is configured. Trust
me, your scenarios bear no resemblance to a competent test suite.
---
Neither a man nor a crowd nor a nation can be trusted to act humanely
or to think sanely under the influence of a great fear.
-Bertrand Russell, philosopher, mathematician, author, Nobel laureate
(1872-1970)
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