RIAA Defendant strikes back.

[the-good-way]

 

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

 

 

 

you mean down in 776,15 - 777,11? (or a different area?? - I assume that area, b/c that has the court's "I'm not the IRS" comment)

 

 

 

[see below]

 

looks like there's some stuff in there like

 

 

776,25 can be pretty heavy

 

and 777,10 is in the light of

 

as can Becraft's assurance on 776,23 and 777,6-9

 

which is why I was looking for an opinion -- the charges appear to be a willful evasion crim case (up in the jury insturction 240,7-19 they discuss that), and, as there are assurances (by defendent) that civil responsibility will be taken, the refusal of the court may feel it is beyond the scope of the crim willful evasion case they are hearing to compell a civil action

 

 

[for convenience - I posted the part I cited, though in the future it might get a bit long -- so I'll try to be sensitive to the convenience v hassle thing]

 

 

19 MR. MURPHY: Just one thing, to put Ms. Kuglin

 

20 on notice, she has got to pay taxes, I think the court

 

21 ought to instruct her that that is the law. She has got

 

22 to file returns and --

 

23 MR. BECRAFT: Your Honor, that is going to be

 

24 cleaned up totally.

 

25 THE COURT: Okay. Well, Mr. Murphy is not

 

 

 

 

 

 

 

 

 

777

 

 

 

1 incorrect that it is the law, and I think what he's also

 

2 saying is there will still be civil penalties.

 

3 MR. BECRAFT: I expect probably 90-day letters

 

4 to be coming pretty quick.

 

5 THE COURT: Okay.

 

6 MR. BECRAFT: And there's going to be civil

 

7 proceedings, and she is going to being take

 

8 responsibility -- she is going to be doing things to

 

9 respond to all of that like file returns, Your Honor.

 

10 THE COURT: Well, I'm just the judge here, I'm

 

11 not the IRS, so I think I'll leave that up to the other

 

12 folks. Anything -- I asked the government. Anything from

 

13 the defense?

[Will Chen]

With regards to the legality of downloading songs.

 

I've done a ton of reading on this subject and have never seen within any acts/laws the explicit statement that the act of "downloading" an mp3 without compensation is illegal.

 

However, all it would take was a court (most likely the supreme court) to define the act of "downloading" as the equivalent of "copying" and the law could be interpreted as such. That being said, the illegal distribution is usually considered the bigger threat as for someone to make a copy they must have access to a copy already.

[slight-return]

 

EE. Only one of my three cartridges will track them all. The other two pop out of the groove on the second-to-last blast.

 

 

It's not an uncommon problem and yeah, sometimes you can hear the mastering eng "riding" the levels with weird manual breathing artifacts

 

I found the problem on "the other end" to be even worse -- smaller ensembles where they try to raise the talk power and muck stuff up pretty good

 

(I used to use a dbx expander on those)

 

 

BTW, the problems mentioned in the article were not about CD quality but about the recording they choose to put on the cd.

 

 

I dig it, that's how I read it (as a comment more generally on dynamics)

[RobRoy]

 

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.

 

I agree.

 

I think that one interesting thing in this whole debate about nailing uploaders is the use of unsecured WI-FI. When I first moved into my home, I did not have my cable hooked up, but my wife was able to access her email using my neighbors unsecured Wi-Fi. In fact, she had four choices, only one of which was secured! Most people do not secure it. But what if a person in an apartment building (with 10 unsecured wi-fi choices) was to use kazaa or limewire for both uploading and downloading - all through a neigbors wi-fi connection? How exactly does this get successfully prosecuted?

 

And what if the guy with the unsecured wi-fi WAS the one doing the uploading - but then claimed in court that it must have been someone using his unsecured wi-fi? Unless they have access to his hard drive (already dumped and replaced with a new one for obvious reasons) there is no evidence to respond to his claim. And it would be pretty hard to make a case that your average person would be responsible for keeping track of something this technical. It would be like leaving the keys in your car and then being responsible for the guy who stole it and used it to run down pedestrians.

 

I've also heard that there are companies selling WI-FI base stations for some ridiculously low price, but the downside is they cannot be secured - anyone within range can use them. Imagine being in a dorm with 30 of these all within range of your laptop with 100 gig of shared songs...

[RobRoy]

 

With regards to the legality of downloading songs. I've done a ton of reading on this subject and have never seen within any acts/laws the explicit statement that the act of "downloading" an mp3 without compensation is illegal. However, all it would take was a court (most likely the supreme court) to define the act of "downloading" as the equivalent of "copying" and the law could be interpreted as such. That being said, the illegal distribution is usually considered the bigger threat as for someone to make a copy they must have access to a copy already.

 

 

I sold video and hi-fi in the 70's and early 80's. I remember well the lawsuit against Sony when they gave the public the ability to record TV. It was lengthy and Sony won.

[RobRoy]

 

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.

 

Great articles.

 

And as I mentioned in a previous post, what happens if one of the people sued had an unsecured wi-fi base station? How does the RIAA prove they were the one doing the uploading without subpoenaing their computer? And if their computer has a new hard drive...

 

I have three computers at home. One laptop is used to check email and plug into our video projection system to watch DVD's. They can scan that one...

[Big0range]

 

But what if a person in an apartment building (with 10 unsecured wi-fi choices) was to use kazaa or limewire for both uploading and downloading - all through a neigbors wi-fi connection? How exactly does this get successfully prosecuted? And what if the guy with the unsecured wi-fi WAS the one doing the uploading - but then claimed in court that it must have been someone using his unsecured wi-fi? Unless they have access to his hard drive (already dumped and replaced with a new one for obvious reasons) there is no evidence to respond to his claim.

 

 

I think they actually capture network packets, which will contain a MAC address that uniquely identifies a particular network card, and thus a specific machine. MAC addresses can be spoofed, but only if you don't want to receive any data, only send it. I don't know if that present that data in a case, though, but I'd have to think they could if needed.

[slight-return]

 

I sold video and hi-fi in the 70's and early 80's. I remember well the lawsuit against Sony when they gave the public the ability to record TV. It was lengthy and Sony won.

 

 

 

Anote on Universal v Sony (aka "the betamax case")

 

That was a contributory infringement case and so Sony only needed to prove that there was substantial legitimate use potential for the product

 

important to the time-shift part, Para 9 of Stevens' opinion (it was one of the points that come up in the arguments) that the time-shifting was view-once & erase behavior

so stuff like maintaining a persistent archive may very well not fall under time-shift fair use

[RobRoy]

 

I think they actually capture network packets, which will contain a MAC address that uniquely identifies a particular network card, and thus a specific machine. MAC addresses can be spoofed, but only if you don't want to receive any data, only send it. I don't know if that present that data in a case, though, but I'd have to think they could if needed.

 

Yeah, when I said Hard drive, I actually meant whole computer. In one of the cases SCA mentioned, they didn't even want to look at the lady's computer. They don't know the mac-address of your computer until they look at your computer. This brings up two problems for the RIAA - assuming they don't serve a surprise search warrant at your door:

 

1. If I use my own wi-fi but have multiple computers, I can bring the computer that DOESN'T have any music or downloading software to court and demonstrate that it is not the one they are looking for (thanks to the MAC address. Therefore, someone unbeknownst to me must have tapped into my wi-fi and illegally uploaded. No proof makes me innocent.

 

2. If I use my neighbors wi-fi to upload and they sue my neighbor for what I did, they have no clue who owns the computer with the MAC address used to do the uploading. They certainly can't figure out who did it without a VERY expensive investigation. And that is not low hanging fruit - which is the only fruit they seem to go for.

 

IOW, I think the best way for a person to completely beat this whole thing is to claim the unsecured wi-fi defense and make them prove you own the computer with the MAC address they have. The only way they can get past this is to do a surprise search of your residence. And I doubt that fruit hangs low enough for their interest. As long as this is a profit center for them, they'll do it. But if on receipt of that first threatening letter a person immediately sells their computer on Craigslist and upgrades, even a search of your residence would reveal nothing.

 

I think unsecured wi-fi is the two ton elephant in the room that sort sort of stops the RIAA cold - at least under current laws (arbitrary rules). It is an interesting game.

[RobRoy]

 

Anote on Universal v Sony (aka "the betamax case") That was a contributory infringement case and so Sony only needed to prove that there was substantial legitimate use potential for the product important to the time-shift part, Para 9 of Stevens' opinion (it was one of the points that come up in the arguments) that the time-shifting was view-once & erase behavior Maintaining a persistent archive may very well not fall under time-shift fair use just a heads up there

 

But you had to watch the commercials when you re-watched, for the most part.

 

Yet we now have Tivo.

[slight-return]

 

But you had to watch the commercials when you re-watched, for the most part.

 

 

I'm not sure I get why that would be a "but"

 

 

I don't recall (I'd have to go back and look at the case) as being one of the major arguments in Universal V Sony

But it wasn't what Stevens was addressing in para 9

[Scafeets]

 

But you had to watch the commercials when you re-watched, for the most part. Yet we now have Tivo.

 

 

 

The Sony (and Disney, et al.) cases are not directly relevant since they dealt with broadcast content. The broadcasts were licensed and copyright holders were compensated. Today's analogy would be iTunes, Rhapsody, etc. No one is saying you can't download from those sites.

 

Everyone with half a brain knew they were stealing music from KaZaA.

[the-good-way]

slight brings ups a good point as well in that betamax was about contributory infringement of the devices themselves

 

[i'm not getting Rob's "but" in terms of time-shift v archival copies either - I'm not sure it's really addressing slight's comment]

[RobRoy]

Regarding the Betamax case. No, it is not the same as this. It is merely similar. The arguments were pretty amazing. Likewise the concept of taxing blank tapes and CD's becuase "everyone knows" the are used to make and distribute copies of copyrighted material.

 

The events, court cases and desisions are all siblings in the same family: That technology allows people, on a one on one basis, to copy copyrighted materials.

 

Not to digress further, but this is also related: When color copiers came out, the treasury dept was worried that instead of having 1 counterfieter making $50,000,000 worth of counterfiet money, they would have a million people making ONE $50 counterfiet. Much harder to find and prosecute.

 

That is why we have metal strips and other anti counterfiet measures in our money now.

 

But to the subject at hand, we are dealing with something that is not really physical, sort of defying the normal concept of stealing and transporting stolen property. It is a mess.

[Scafeets]

 

But to the subject at hand, we are dealing with something that is not really physical, sort of defying the normal concept of stealing and transporting stolen property. It is a mess.

 

Not at all. Intellectual property doesn't need to be physical. Broadcasting without clearance, or perfroming copyrighted material in a public place without a license, was illegal long before the Internet. There was no physical manifestation of the music then, either --- just sounds in the air.

 

There's no legal or moral justification for downloading based on the "atoms vs. bits" paradigm.

[RobRoy]

 

Think of DRM and Media Sentry as music's metal strip. Not at all. Intellectual property doesn't need to be physical. Broadcasting without clearance, or perfroming copyrighted material in a public place without a license, was illegal long before the Internet. There was no physical manifestation of the music then, either --- just sounds in the air. There's no legal or moral justification for downloading based on the "atoms vs. bits" paradigm.

 

 

It was easy to enforce. Enforceability is a key to the success of a law.

[RobRoy]

 

There's no legal or moral justification for downloading based on the "atoms vs. bits" paradigm.

 

 

You confuse what is legal with what is moral - and vice-versa.

[Scafeets]

 

You confuse what is legal with what is moral - and vice-versa.

 

 

Nope. I think illegal downloading is both illegal and immoral.

 

Why do you think downloading stuff you don't own is OK? Explain your justification, legally and morally.

[the-good-way]

 

The events, court cases and desisions are all siblings in the same family: That technology allows people, on a one on one basis, to copy copyrighted materials.

 

 

Pretty much all copyright law is about that...it covers the right to copy

 

(one area where the cases can differ is, like with the betamax case, is some are about potential contributory infringement, where others may be about actual primary infringement)

 

But to the subject at hand, we are dealing with something that is not really physical, sort of defying the normal concept of stealing and transporting stolen property. It is a mess.

 

 

That's the challenge of IP and IP law in general

[RobRoy]

 

Nope. I think illegal downloading is both illegal and immoral. Why do you think downloading stuff you don't own is OK? Explain your justification, legally and morally.

 

 

I take the stand my country’s constitution takes: a thing is a right until someone bigger than you (the government) says it isn’t.

 

Every single case I have read regarding this p2p issue involves someone making music available to be uploaded from them. I cannot think of a single case where someone was being pursued for the sole reason that they downloaded for their own personal use. Not one.

 

Regarding downloading stuff I don’t own. I think of it as copying. Downloading, at its root, is merely a method of copying. So, how do I feel about copying something I don’t own?

 

If it is intellectually produced (software), I think it is wrong. If it is to make copies to sell, I think it is wrong.

 

If it is music:

 

If it is to make copies to sell, I think it is wrong. If it is to listen to a song to see if I want to buy it, I have no problem with that. If it is to get an mp3 of a song I already own on vinyl or cd for my own personal use (because it is easier and faster than ripping), I have no problem. If it is to make a copy of something I would never buy, I have no problem. If it is to make a copy of something that I would have otherwise bought, I think it is wrong.

 

But only you know why songs actually exist on your hard drive.

 

And that last one brings up another two ton Elephant in the room: Most people download LOTS of music because it is fun and free and just…cool…to be able to do it. Then they forget they ever did it and probably don’t listen to ten percent of what they download. They see it as downloading pictures and articles and other stuff that is everywhere out there. But they are not computer savvy enough to flip the “do not share” switch. Then some greasy RIAA lawyer comes sniffing, downloads from them and, BINGO, a “Pay us $4,500 or we’ll sue you for everything you will ever own your entire life” letter arrives in the mail.

 

It is beyond sleazy.

[RobRoy]

 

That's the challenge of IP and IP law in general

 

 

YUP.

 

And in the court of public opinion, the RIAA is losing this one badly. Very badly.

[Scafeets]

 

If it is to make a copy of something I would never buy, I have no problem. ............But only you know why songs actually exist on your hard drive. .

 

 

So if I steal your car, which I otherwise would have never purchased, and put in in my garage for a couple of months, that's cool with you?

[the-good-way]

 

YUP. And in the court of public opinion

 

 

 

I don't think we can really comment too much on the court of public opinion, I mean talk about a mess, no rules of order, confirmation bias out the wazoo, every side preemptivelty declaring victory hoping to influence the judgement, not to mention a lot of really bad information out there.

 

I mean, hey, that's a big reason why we have the courts -- to get away from mob rule

[RobRoy]

 

So if I steal your car, which I otherwise would have never purchased, and put in in my garage for a couple of months, that's cool with you?

 

 

If my car is still there after you "steal" it, I have no problem with that at all.

[RobRoy]

 

I don't think we can really comment too much on the court of public opinion, I mean talk about a mess, no rules of order, confirmation bias out the wazoo, every side preemptivelty declaring victory hoping to influence the judgement, not to mention a lot of really bad information out there. I mean, hey, that's a big reason why we have the courts -- to get away from mob rule

 

 

Yep. But look at that Gonzalez thing. Even if he was told by President Bush to fire eight guys because they wouldn't nail innocent democrats, no law was broken. It is a non issue except for the court of public opinion which seems to matter a great deal to those who are in a huff because Ms. Miers refused to show up to their kangaroo court.

 

Or Rodney Allen King.

 

The court of public opinion is everything.