RIAA Defendant strikes back.

[RobRoy]

I have noticed, in legal documents, when something that should be OBVIOUS is impossible to find, it means it is almost certainly NOT there but that fact is masked with lots of obfuscation. It is up to the reader to figure it isn't there by doing lots of reading.

 

And in this country our laws are sort of like the old innocent until proven guilty thing. That is, you have a God given right to do a thing unless the government says it will punish you if you do it. God grants everyone the right to commit murder. If he didn't, nobody would be able to do it. But he also offers consequences for such action. The government is similar. They don't say you can't murder. They just say that if you do and you are caught, they will force certain things on you (like execution for example) via the power of the gun. Until I see something in one of these documents that states, even in "lawyer-eze" that a copyright law (or any other law) has been violated by a person downloading an mp3 without paying for it, I will assume it is completely legal. I have yet to see any such clause and, frankly, am more convinced, with every passing month, thread and lawsuit, that it is completely legal.

 

I could be wrong and have changed my opinion on subjects in the past. But the problem is that the more I know about a subject, and hence the more supporting material I have on which to base my opinion, the less likely the chance I will change that opinion. The documentation is all there for anyone to see. It is just mired in legal speak and intentionally confusing giberish.

[RobRoy]

Yeah, you missed it. The DMCA makes a point of protecting copyrights. And copyright law covers downloading very specifically. The reason for the DMCA was to provide a measure of Fair Use while protecting inteleectual property rights.

 

While the DMCA specifically circumvents the Berne Convention, it acknowledges the Phonograms Act, as well as all preceding US copyright law.....

 

SEC. 102. TECHNICAL AMENDMENTS.

 

 

Ok. And...?

 

Where does it say there that it is illegal to download music for my own personal use?

[Scafeets]

 

BTW, here is another good link: http://teamcombooks.com/mp3handbook/5.htm Notice that the emphasis, regarding distribution of copies, is on the illegality of making copies available for others to copy. And even when the downloaders themselves are addressed (case #3) it is merely a claim, not backed up by any actual legal document. And it keeps talking about it being illegal for the site from which you download to have the song available, but doesn't address what section you violate by actually downloading it. Imagine a guy makes a hundred copies of a copyrighted CD and puts them in a box in front of his house with a sign that says "Free. Take one". He is breaking the law by making them available, but you are not breaking the law by taking one.

 

 

You must have a reading comprehension problem. Your link clearly states (Cases #3 and 5) that downloading music off the net is illegal.

 

I don't know what you're trying to justify, but I gotta tell ya.....you're wrong, wrong wrong. If you don't buy it, you can't legally download without the copyright holder's permission.

[RobRoy]

 

You must have a reading comprehension problem. Your link clearly states (Cases #3 and 5) that downloading music off the net is illegal. I don't know what you're trying to justify, but I gotta tell ya.....you're wrong, wrong wrong. If you don't buy it, you can't legally download without the copyright holder's permission.

 

 

Right. The author of the article makes the claim, but then backs it up by saying the party that made it available was breaking the law.

 

Check out from number 3: "The U.S. Copyright Act of 1976 states that song owners have exclusive rights on copying and distributing their music. They may permit copying and distribution but are entitled to royalties for that permission. A more recent law is the Digital Millennium Copyright Act (DMCA), passed in 1998. The DMCA states that without permission from a song’s owner, it is illegal to make copyrighted music available online for distribution."

 

Swell. Becky wasn't the one making it available. it is completely irrelevent information to case #3. Relevant information would be citing what law SHE was breaking by downloading. It is a straw man. The author is mistaken.

 

Number five was even sillier. It is making the case that because you are "trading" music, you are being given something of value for making songs available to others.

 

As with many of these articles, a claim is made, but the argument supporting it actually supports something else entirely. I have yet to see anyone cite a specific law or clause, from a law currently binding on US citizens on US soil, making it any kind of crime to download MP3's off the internet. Uploading, yes. Downloading, no.

 

Edit: My last paragraph is intentionally specific. It does not address what you do with the song after you download it. That is a separate thing, but if it is illegal, it can impact the legality of the actual downloading: It is legal to mail a letter, but if it is mail fraud, it isn't. It is legal to download mp3's without paying for them, if it is for personal use.

[Scafeets]

 

Right. The author of the article makes the claim , but then backs it up by saying the party that made it available was breaking the law. Check out from number 3: "The U.S. Copyright Act of 1976 states that song owners have exclusive rights on copying and distributing their music. They may permit copying and distribution but are entitled to royalties for that permission. A more recent law is the Digital Millennium Copyright Act (DMCA), passed in 1998. The DMCA states that without permission from a song’s owner, it is illegal to make copyrighted music available online for distribution." Swell. Becky wasn't the one making it available. it is completely irrelevent information to case #3. Relevant information would be citing what law SHE was breaking by downloading. It is a straw man. The author is mistaken. Number five was even sillier. It is making the case that because you are "trading" music, you are being given something of value for making songs available to others. As with many of these articles, a claim is made, but the argument supporting it actually supports something else entirely. I have yet to see anyone cite a specific law or clause, from a law currently binding on US citizens on US soil, making it any kind of crime to download MP3's off the internet. Uploading, yes. Downloading, no. Edit: My last paragraph is intentionally specific. It does not address what you do with the song after you download it. That is a separate thing, but if it is illegal, it can impact the legality of the actual downloading: It is legal to mail a letter, but if it is mail fraud, it isn't. It is legal to download mp3's without paying for them, if it is for personal use.

 

 

Jeez, I give up. I point out the chapter and verse in YOUR two stated references, and all you can come up with is a lame interpretation of DMCA. Whether you "intrerpret" it properly or not, the point remains: DMCA does not supercede copyright law. You're living in a dream world if you think that you have the right to "download but not upload."

 

I'm not pretending to give legal advice here, but you apparently are. And anyone who follows your advice could get themselves in trouble. Granted, no one is going after downloaders much right now -- uploaders, file-sharers, etc. are a much bigger problem. But the poor chump sitting in a college dorm with 1,0001 illegally downloaded MP3s can expect a visit from the authorities sooner or later. You might think the law is wrong, but that doesn't make it "not a law."

[the-good-way]

 

The reason for the DMCA was to provide a measure of Fair Use while protecting inteleectual property rights.

 

 

The DMCA was actually an implementation of WIPO treaty agreements [before it got the DMCA moniker it was known as the "WIPO Copyright Treaties Implementation Act" - I think the On-Line Copyright Liability Limitation Act may have also gotten short of shuffled under the "DMCA" label.]

 

A lot of it was to come into international alignment with stuff like DRM anti-circumvention rules [the SW compatibility RE stuff was a revision]

 

(don't get me wrong...this isn't a position comment, I know when convos get heated up, chiming in can get you an "enemy" link real quick -- its more of a history comment as to the origins and purpose of the DMCA specifically)

 

 

Sca does bring up the good point that the DMCA is merely revision to copright law, it's not a new body of legal theory

[the-good-way]

FWIW the US copyright office does mention in it's FAQ

 

http://www.copyright.gov/help/faq/faq-digital.html

 

Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution.

 

[the-good-way]

-One note :

 

I'm glad that the individual is putting to legal test her claim that there was illegal search and the validity of any evidence.

 

I don't mean to say

"She's not guilty - {censored} the man"

nor

"{censored} her she's guilty"

 

I wouldn't want to judge the case without hearing the evidence and that's why we have the test going on

I'm just glad that we have that facility to do so - to make her case (whatever the judgement may be)

 

One fear that I do have is that "file-swapping" technology itself become implicitly synonymous with "illegal file sharing" (ugh, remember the Usher case a few years back -- or worse..Jesse Jordan) as the technology itself has signifigant valid use

 

[big fan of legal torrents site myself, dig the distro model of things like "escape pod"...they pay their authors BTW]

[RobRoy]

 

Jeez, I give up. I point out the chapter and verse in YOUR two stated references, and all you can come up with is a lame interpretation of DMCA. Whether you "intrerpret" it properly or not, the point remains: DMCA does not supercede copyright law. You're living in a dream world if you think that you have the right to "download but not upload." I'm not pretending to give legal advice here, but you apparently are. And anyone who follows your advice could get themselves in trouble. Granted, no one is going after downloaders much right now -- uploaders, file-sharers, etc. are a much bigger problem. But the poor chump sitting in a college dorm with 1,0001 illegally downloaded MP3s can expect a visit from the authorities sooner or later. You might think the law is wrong, but that doesn't make it "not a law."

 

 

You gave chapter and verse and I actually showed part of it in my text. It sounds like what you are now saying is that DMCA is not what makes it illegal, but rather, existing copyright law is. But that doesn't address it either.

 

The chapter and verse you pointed out was exactly the part where I believed the author was intentionally obfuscating. I used it to demonstrate that even though the author "claims" Becky's actions were illegal, what he used to back it up had nothing whatsoever to do with what she did. It was disengenuous at best.

 

I do not think the law is wrong. I just have not seen "the law" yet. People claim it exists, yet I have yet to see it.

 

This reminds me of the ailine pilot that refused to pay her taxes until the IRS agents showed her where, in the tax law, it said she had to pay taxes. They didn't, so she didn't pay. The IRS took her to court. She won. Then the IRS attorneys had the audacity to ask the judge to force her to pay her taxes. He said it was not within the power of his court in that case to make such a decision.

 

http://www.etherzone.com/2003/stang081503.shtml

http://www.constitution.org/tax/us-ic/kuglin/kuglin.htm

 

Bottom line is, just because everybody says it so, don't make it so. Everything You Know Is Wrong.

[the-good-way]

 

This reminds me of the ailine pilot that refused to pay her taxes until the IRS agents showed her where, in the tax law, it said she had to pay taxes. They didn't, so she didn't pay. The IRS took her to court. She won. Then the IRS attorneys had the audacity to ask the judge to force her to pay her taxes. He said it was not within the power of his court in that case to make such a decision.

 

 

can we have a case ref on that? i could be an interesting read

[RobRoy]

 

FWIW the US copyright office does mention in it's FAQ http://www.copyright.gov/help/faq/faq-digital.html Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so? Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution.

 

 

That is mere interpretation and even the "more information" link is merely a transcript of testimony. I want to see the actual law. It reminds me more and more of the Klugin case.

[RobRoy]

 

can we have a case ref on that? i could be an interesting read

 

 

The links are there. And the second one is the actual court transcripts. Yes, it is a VERY interesting read.

 

But make a pot (or two) of coffee.

[the-good-way]

 

The links are there. And the second one is the actual court transcripts. Yes, it is a VERY interesting read. But make a pot (or two) of coffee.

 

 

Im not seeing the published opinion there (I may totally be missing it)

do you have a link to the actual court opinion?

 

as I'm looking for the actual decision I noticed an interesting article on this

 

http://coleslaw.wordpress.com/2006/07/04/irs-vs-kuglin-internet-misinterpretation/

 

]

[the-good-way]

 

That is mere interpretation and even the "more information" link is merely a transcript of testimony. I want to see the actual law. It reminds me more and more of the Klugin case.

 

 

Thats an important point

 

though I'm not sure if "interpretation is "mere" that's the big job of the judicial branch ...which is why we would need to look at the caselaw as well as the code

 

(it may very well fall under the above cited code such as 17USC106)

 

 

Anyone have access to Westlaw or Lexis?

 

[just offhand it looks like Eletra v Perez and UMG v Lindor have some stuff]

[slight-return]

Anyone have access to Westlaw or Lexis?

 

I do (or will in a day or so)

h

The wife actually assigned me to do some research in this area for an IP class shes giving in Korea (she's an IP atty -- I'm an engineer who works with IP, which is how I got drafted into gruntwork...oh, and being a guest speaker on specific issues -- kinda sucks I was just going to tool around, now I have to work )

 

so I can see if I can pull the specific caselaw through the engines (findlaw just ain't enough for a lot of this stuff, esp as there is a lot of popular "noise")

 

I think the Perez / Lindor stuff is hammering out if making avail for upload (w/o evidence of D/L is enough or if there actually has to be evidence of D/L..the actual making of a secondary copy for there to be contributory infringement)

 

I *BELIEVE* (and I haven't fully researched at this point so PLEASE take it as such) that in both cases, once a D/L has actually happened you have contributory infringement

 

Hopefully I'll have a better handle in a week (I'd better fly out date is Aug 16)

 

[if my Lexis acct...Well I might wind up using Westlaw, the interface is simpler -- is per session as opposed to time, Ill try to pull the tax decision too....sometimes the more liberty type sites can get pretty dicey with the confirmation bias ]

[RobRoy]

 

 

The actual court transcript: http://www.constitution.org/tax/us-ic/kuglin/kuglin.htm

[RobRoy]

On a side (but slightly related) note: http://tech.yahoo.com/blogs/null/33549

 

After reading this short article, check out comment number 2.

[the-good-way]

 

The actual court transcript: http://www.constitution.org/tax/us-ic/kuglin/kuglin.htm

 

 

cool!

 

but what I was looking for was the court's opinion (ifone was published) opinion which is different than transcripts - I didn't see that directly in the transcript (though I could have missed it)

[slight-return]

 

On a side (but slightly related) note: http://tech.yahoo.com/blogs/null/33549 After reading this short article, check out comment number 2.

 

 

kind of a funny story about that

 

so abt 25 years ago, my granddad asked me what I was up to

 

"building a compressor" I told him

 

He was a broadcast engineer (set up TV station in Flint, still have his RCA commemerative plate) and a pretty hot electric mandolin player

 

Well, he read me the riot act!

 

"you don't need to build a compressor!" he scolded "you need to build an expander...everything is way way too compressed and then people compress it more"

 

this was about 10 mins of ranting - he was seriously mad

 

Is it worse now in terms of the data? I dunno (I listen to a lot of early music, ICM, audiodrama, etc and that's actually gotten better in some instances...possibly because they are more marginal markets so back in the day, the cost-effectie equipment wasn't very good)

and I suppose now, you can digitally compress without the noise problems of analog compression

 

but it's funny that the behavior ain't new

[RobRoy]

 

kind of a funny story about that so abt 25 years ago, my granddad asked me what I was up to "building a compressor" I told him He was a broadcast engineer (set up TV station in Flint, still have his RCA commemerative plate) and a pretty hot electric mandolin player Well, he read me the riot act! "you don't need to build a compressor!" he scolded "you need to build an expander...everything is way way too compressed and then people compress it more" this was about 10 mins of ranting - he was seriously mad Is it worse now in terms of the data? I dunno (I listen to a lot of early music, ICM, audiodrama, etc and that's actually gotten better in some instances...possibly because they are more marginal markets so back in the day, the cost-effectie equipment wasn't very good) and I suppose now, you can digitally compress without the noise problems of analog compression but it's funny that the behavior ain't new

 

 

I really hate FM for music. It started back in the 70's when I heard a song I really liked at the time and it started with a lone piano, with the band coming in later. On the album, the piano was, of course, quiet. When the band came in it had the dynamic impact that was part of what made the song great. It was emotionally impactive.

 

Well, on FM, the piano came in loud, and when the band came in, it was instantly compressed to the same overal volume as the lone piano had just been. I consciously noticed it. I've been annoyed with FM ever since. The compression is so obvious to me it is like a constant background noise.

 

Compression on an individual instrument of course can be a great effect.

[RobRoy]

 

cool! but what I was looking for was the court's opinion (ifone was published) opinion which is different than transcripts - I didn't see that directly in the transcript (though I could have missed it)

 

I don't think it is there. Check out the judges response to the IRS attorney's request at the end though.

[slight-return]

Compression on an individual instrument of course can be a great effect.

 

 

funny thing is he hated it there too!

 

I'm definietly not as hardcore as he is, but since I come from a classical background (was a double majr in school -- CS, classical guit) I still kind of have that, but I realize for a lot of popular music, folks dig it

[Scafeets]

kind of a funny story about that so abt 25 years ago, my granddad asked me what I was up to "building a compressor" I told him He was a broadcast engineer (set up TV station in Flint, still have his RCA commemerative plate) and a pretty hot electric mandolin player Well, he read me the riot act! "you don't need to build a compressor!" he scolded "you need to build an expander...everything is way way too compressed and then people compress it more" this was about 10 mins of ranting - he was seriously mad Is it worse now in terms of the data? I dunno (I listen to a lot of early music, ICM, audiodrama, etc and that's actually gotten better in some instances...possibly because they are more marginal markets so back in the day, the cost-effectie equipment wasn't very good) and I suppose now, you can digitally compress without the noise problems of analog compression but it's funny that the behavior ain't new

 

In your defense: Compressors have a legitimate place in the signal chain; but they need to be used judiciously. Over-compressed signal is something that started with radio broadcasters to try and make their (often crappy) signals sound better. Over the years, it got to a point where they over-processed music programming with a stack of effects including compression and in the worst case, (ugh!) reverb.

 

In the 70s, it was common for FM stations to use an "Opti-Mod" which not only compressed the livin' crap out of the signal-- it also artificially added more stereo separation, thus losing any semblance of dynamics or proper stereo phasing. They also EQ's out the highs and lows to eliminate distortion on low-end car radios. So, "lowest common denominator" not only applied to the programming, but the engineering as well.

 

Fast-forward to now: Unfortunately, there's an entire generation of listeners who think over-processed, compressed,192K sampled MP3s are state-of-the-art. Not only do they not care, they are starting to think of what they hear as right and proper. So, a lot of bands are processing and compressing their sound to ever higher degrees in recordings and in live performance.

 

A friend of mine who owns a studio said a young band came in to record their first CD and the singer was stepping his vocals -- essentially emulating the Antares' "Cher Effect."

 

[RobRoy]

funny thing is he hated it there too! I'm definietly not as hardcore as he is, but since I come from a classical background (was a double majr in school -- CS, classical guit) I still kind of have that, but I realize for a lot of popular music, folks dig it

I have a ton of Sheffield and Telark vinyl from the 70's. I LOVED the dynamics. I must admit though, that some of the music (especially on the Sheffield) is crap.

 

Back in those days I was not listening to the music. I was listening to the stereo reproduce the music. Once I started appreciating the music, the quality actually became less critical. Hey Joe is not exactly a good example of high quality and dynamic sound.

 

I have a Telark digital recording (on vinyl) of the 1812 overture that has canon blasts you can SEE. Only one of my three cartridges will track them all. The other two pop out of the groove on the second-to-last blast.

 

I'm not a vinyl snob though. CD's most definitely sound better - at least, if recorded properly. But if I am going to just sit and listen to music, it is almost ALWAYS vinyl. It is the whole experience that is fun - like driving a fully restored MG-TC as opposed to a brand new Porsche.

 

BTW, the problems mentioned in the article were not about CD quality but about the recording they choose to put on the cd. Take the same master and run it to a vinyl master cutter and you'd get the same crap on vinyl. It's all about the goofy standards the buggy whip industry is working towards now for the purpose of keeping sales up as everyone is switching to Model T's.

[Scafeets]

A more coherant account of what's going on in this lawsuit:

http://blog.wired.com/music/2007/07/p2p-lawsuit-def.html

 

and a related case: http://blog.wired.com/business/2007/06/victim-of-dropp.html

 

So, it appears in both cases the defendants (now the plaintiffs) admit guilt, but say that the RIAA's use of MediaSentry is illegal. That's what is at stake -- not the simple and clearly defined concept that downloading is illegal.

 

Since MediaSentry is also used by the MPAA, and they have way more brains, lawyers and money than the RIAA, I would expect them to prevail.