On Fri, 2008-01-04 at 18:57 -0700, Chris Gehlker wrote:
> 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.
----
perhaps you should get a column at the Washington Post as they clearly
have a lot of writers with opposing points of view. Again, I am not the
right person to argue the exact statements made by Mark Fisher in his
article. I am not missing any point...you don't agree with the article.
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.
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.
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.
----
> 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
----
> 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.
----
> 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.
----
#1 THIS case will never reach a jury. Too much has already been conceded
by the defendant to make it a reasonable prospect for a jury to have any
outcome that they wouldn't get from the judge and not put everybody
through the time/pain/cost of a trial. That clearly would not be in
defendants interests.
#2 Again you are presupposing based upon facts not evident anywhere
except in your head. Since this won't be heard by a jury, the award has
already been decided at $40,000 and at best, perhaps the defendant has
mitigated the final score some but the outcome will not likely change
from the original court order.
#3 The outcome of this case will have no bearing on whether Mark Fisher
is right or wrong...he's entitled to an opinion, much as you are. Mark
Fisher is right for one clear reason, because all he really pointed out
was that the bar for proof of copyright infringement and proof thereof
was just moved in the short duration of this one case, no doubt because
of the RIAA's success in prosecuting Capitol v. Thomas. In this case
against Howell, the absurd burden of proof given as jury instructions
was adopted in this specific RIAA's supplemental motion for summary
judgment. That makes Mark Fisher right regardless of outcome and the
fact that you think you can tie the outcome of the issue for this poor
schmuck Howell to whether Mark Fisher's article is a flag on the tall
flagpole that you simply don't get it.
----
>
> > 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.
----
plaintiff has made 70+ pages of assertions between the various motions.
plaintiff has an array of attorneys and investigators, expert witnesses
lined up against a defendant who has acted pro se and long ago gave away
primary facts in depositions that make a defense at this stage
pointless. Fisher's characterization had nothing to do with any of this.
I will repeat because even though I quoted it several times, you still
don't get it. The point Fisher was making was the bar for the burden of
proof has moved - so say the plaintiffs, the RIAA.
The fact that the RIAA has 70+ pages of assertions, purported evidence
of KaZaA, purported evidence of defendant making copyrighted materials
available for download has nothing to do with Mark Fisher's point at
all...only that the RIAA is asserting that their burden of proof has
lessened.
----
> >
> > 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.
----
You haven't formed an opinion on this? This is only the reason for the
entire story in the first place.
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.
----
> > 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.
----
except that you didn't put the RIAA's usage in quotes...
(unless you count words 'authorized' and 'unauthorized' which is what
did you put into quotes but that can't be the same thing)
I don't know what you're referring to above as an important
issue...Howell has been, continues to be and will ultimately be run over
by the legal freight train operated by the RIAA but of course, that is
their point. They will run roughshod over anyone whom they have what
they believe to be evidence of misdeeds and flatten them.
I hardly think that the issue of honesty is at play here...for either
plaintiff or defendant.
----
> > 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.
----
of course they are hypotheticals are always ridiculous until they
actually happen and each scenario that I offered seemed to be scenarios
that I would consider likely enough to happen frequently.
The simple fact is, that with each scenario, you get my point...with
ripped music on your hard drive, you are only one malware, one
compromised router, one offspring with an idea, one forgetful
configuration change away from being train wrecked by the RIAA.
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?
Craig
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