Tuesday, January 08, 2008

Washington Post issues "correction" (???)

The Washington Post has now issued a "correction", saying that its column

incorrectly said that the recording industry "maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer." In a copyright-infringement lawsuit, the industry's lawyer argued that the actions of an Arizona man, the defendant, were illegal because the songs were located in a "shared folder" on his computer for distribution on a peer-to-peer network.
Recording Industry vs. The People stands by its previous statements on the subject.

Mr. Fisher was right. The Washington Post "correction" is wrong.

Cary Sherman's "retraction" of (a) what his lawyers said in the Atlantic v. Howell supplemental brief; (b) what SONY BMG's chief of litigation testified to, under oath and in the presence of the jury, at the Capitol v. Thomas trial; and (c) Richard Gabriel's cross examination of Jammie Thomas about her failure to ask the record companies for permission to copy her cd's onto her hard drive are:

-of no legal effect unless and until "retractions" are filed in those court cases; and
-completely lacking in credibility.

They did not come about until after stock prices fell in response to the Motley Fool article decrying the RIAA's position.

Initial article on RIAA response to judge's question as to whether copies on the hard drive were themselves "unlawful", and subsequent editor's note
Our Slashdot post on the same subject
Our post on Washington Post article
Motley Fool article
Cary Sherman's on-air "retraction" saying that Jennifer Pariser "misspoke"
Question and answer on "unlawfulness" in Atlantic v. Howell
Wired.com article about Jennifer Pariser "misspeaking" and Richard Gabriel crossexamining based on that "misspeaking"

Commentary and discussion:

p2pnet.net
Wired.com

16 comments:

stevger said...

Yes, I have been thinking about it, it seems highly unlikely that the Sony BMG lawyer misspoke.

If she did misspoke then:

1) She and the RIAA lawyers are incompetent because they didn't prepare beforehand, the questions were from the RIAA, so it shouldn't have been an unexpected question.

2) If they did prepare, then why wasn't the RIAA lawyer "surprised" at her answer.

-----

The context of the question was clear from what we have seen and read. If she misheard the question, the RIAA lawyer should have tried to clear it up. He didn't.

So if she misspoke, they are (both RIAA and Sony lawyers) incompetent.

If she didn't misspoke, then Cary Sherman is lying.

I'm not sure which way is better.

James said...

R.B.,

Thanks for holding your ground and exposing Big Mu$ic's many contradictions in regards to transferring music onto computers, even in the face of criticism from other friends of the fight that first said this was barking up the wrong tree. We now know it isn't, even if the Washington Post is confused as usual.

I know for fact the mainstream paper racket isn't going to call this spade a spade, because they're just as outdated and technophobic as the RIAA.

You know, if the RIAA gets everything it wants, there will be little integrity left in copyright law to stop the Washington Post from stripping Mr. Fisher and all other writers of the rights to their own work by the papers that publish them, just as Big Mu$ic tries to do with the artists that allowed them to exist and get rich in the first place.

Anonymous said...

...were illegal because the songs were located in a "shared folder" on his computer for distribution on a peer-to-peer network.

This is totally bogus. Any computer folder is a "shared folder" to any P2P program that is pointed at it. A P2P program can share multiple folders at one time. A P2P program can share your entire hard drive, although that would be very unwise. You don't put files in a magical, special designated, "Share Folder", and nowhere else, to cause file sharing.

Yet the record industry clearly tries to mislead the ill-informed masses regarding this issue by strongly implying: "Look! He put those illegal music files into the one and only Share Folder! He intended to commit the crime of copyright infringement the moment he did that!"

Once they have this settled in "hundreds of other cases", they can then make the case that any folder is a Share Folder, meaning any place you have music files on your computer is now copyright infringement, no distribution required.

Pretty neat, huh?

XK-E

Scott said...

"They did not come about until after stock prices fell in response to the Motley Fool article decrying the RIAA's position."

Ray, with all due respect, that's a really tenuous assertion.

It is generally recognized that there is a correlation between some types of hard news about a company (i.e. dividend and earnings announcements, changes in management, sales figures, etc.) and movement in the company's stock price after the announcement. However, the correlation to soft news and opinion is a great deal more speculative.

Investors who have enough money to move a large cap stock's price usually rely on more than a single Motley Fool article to influence their decisions. If it weren't so, then the SEC would be asking the author some pointed questions about who she knows who might have shorted the stocks she wrote about.

Ray Beckerman said...

stevger, try this hypothesis... they're all liars... see if that one works....

james, thanks.... the washington post isn't confused... it lives off of advertising revenue.....

anonymous XK-E... if you keep bringing up facts you'll spoil everything....

scott... well of course it's tenuous, it's just speculation based on the interesting timing... all i know is that (a) the capitol v. thomas testimony was made public on october 3rd, and nothing was said... (b) my point about the howell brief was made publicly on dec. 11th, and received worldwide attention, and nothing was said... (c) marc fisher called them in december about the december 11th howell brief and nothing was said.... (d) marc fisher came out with his article on december 29th and nothing was said... (e) the motley fool article came out on january 2nd, record company stock prices plummeted that day and the next morning, and on the afternoon of january 3rd, cary sherman finally found marc fisher's phone number, got together with him on the radio, and "retracted" the contents of the RIAA's December 11th court filing, October 3rd testimony, and October 3rd cross examination of a defendant....

by the way i'm still waiting for the 'retractions' to find their way to the desks of judge james and judge wake.....

Shane said...

""They did not come about until after stock prices fell in response to the Motley Fool article decrying the RIAA's position."

Ray, with all due respect, that's a really tenuous assertion."


No it is a factual assertion in that that particular paragraph you quoted only implies causality. The order of the actions is completely factual. While the causal role of the Motley Fool article may be debated the time line cannot. The RIAA didn't issue any public "retractions" until after the Fool article (except for the alleged contacts to the media by Sherman, which curiously never resulted in any articles...).

The RIAA has never--not even to this day--declared to the public that CD ripping is legal.* Sherman specifically evaded the question of legality in the NPR interview. Remember, the RIAA tried to ban all mp3 players forever by suing Diamond Multimedia over the Rio mp3 player, saying that such a device had no non-infringing uses. The iPod you rip your CD's two only exists because the RIAA did not get its way in court--not because they had any change of position about CD ripping.

*They did say it was legal in the Supreme Court in Grokster, but they don't seem to believe that and seem to take an effort to cover that statement up. Sherman could have told NPR, "Hey, we said CD ripping was legal to the Supreme Court so we only think sharing is illegal, not ripping." Except he didn't because that isn't what they think.

Russell said...

I also see this as a case of two different objectives.

One was to win a court case by vilifying the defendant.

The other is to control spin and set policy.

The big problem is that the court case is a matter of public record but the 'official' policy on ripping isn't.

Personally, I think Ray has it right in the intent, if not in the details. At best this was a trial balloon, if ignored it would become standard practice. Since they were called on it, they will try to introduce the concept via other means.

Ray Beckerman said...

It's still "introduced". They haven't said anything to Judge Wake about Cary Sherman's radio interview.

Scott said...

Shane,

Ray reframed it correctly in his subsequent comment.

I work in the securities industry. People lose tons of money every day in perceiving false causality. I felt that "...fell in response to..." asserted causality.

Here is a helpful link: http://changingminds.org/disciplines/argument/fallacies/false_cause.htm

Macros said...

So when their comments in the legal courts was moved into the "courtroom of public opinion" a retraction has been issued in the "courtroom of public opinion" but not yet in the legal courts.

I wonder if one will EVER be issued in the legal courts. As has been pointed out, it's pretty important to the Thomas case, as well as to a few other cases going on at the moment. A legal retraction has a lot more serious ramifications than some big wig saying an underling "misspoke".

Anonymous said...

Scott,

Don't forget the previously referenced [in this blog] fallacies list at: www.nizkor.org/features/fallacies/

Shane said...

I work in the securities industry. People lose tons of money every day in perceiving false causality. I felt that "...fell in response to..." asserted causality.

I would agree, however that claim of causality refers the stock price falling "in response to" the Motley Fool article. You are extending that to include causality of the RIAA's supposed retraction, which may have been implied but the implication is as much on the reader as on the writer.

I think Ray's statement: "They did not come about until after stock prices fell in response to the Motley Fool article decrying the RIAA's position."only notes the suggestive timing of the "coming about" whereas it actually claims that the stock price fell as a result of the article. I think you are conflating one with the other.

You don't get to blame Ray for the RIAA's appearance of guilt just because he stated the facts in an accurate way which may tend to cast doubt on the believability of the RIAA's claims. Talk to the RIAA about that.

Scott said...

Whatever, Shane. Hinting that someone is an RIAA shill is the equivalent of invoking Godwin's Law on this blog.

Freemanwalking said...

I saw this story in Time Magazine. It rekindled my ire toward the RIAA which was first set off in October when the lady lost a lawsuit for $220,000. Living in Nashville we get regular doses of artists whining about file sharing, etc. on the evening news.

I have reached the point where I don't buy CD's or download songs. I'd love to see the record companies broken down into independents where the artists make the bulk of their money from touring rather than record sales. Its an extreme position but going after good people (and dead people's families) for a few stupid songs is over the line.

I'll keep checking this site.

Regards,
BPIII

Shane said...

scott said...
"Whatever, Shane. Hinting that someone is an RIAA shill is the equivalent of invoking Godwin's Law on this blog."

Remember how I wrote that implications are as much about the reader as the writer. I did not mean in anyway to imply that you are an RIAA sock-puppet. The idea hadn't even occurred to me until you suggested it. And I apologize if that is how my post comes off since that was not the intended message.

When I said "Talk to the RIAA about that" I meant that if an examination of the facts tends to make the RIAA look guilty then you shouldn't blame Ray but that one should ask the RIAA about why the facts seem to cast them in such an unfavorable light. I didn't mean to imply that you had them on speed dial.

I think, however, that you illustrate a point which bears on your original post, that is that you are very sensitive to possible implications, perhaps overly so.

Anonymous said...

I'm actually a bit bemused by the original assertion because it has a bit of a painful consequence. Follow me to see where I got confused.

Sony BMG is a member of the RIAA. It is also a part of the larger Sony Consumer Electronics concern. The RIAA declares CD ripping illegal, which makes it kinda hard to create MP3s.

Isn't that more or less stating that the division of Sony that makes MP3 players (reviving the "Walkman" brand) as well as Sony Ericsson which sticks them in mobile phones is actually illegally harming Sony BMG's profits?

Are they then making tools to support the crime that the RIAA alleges to exist? When is the RIAA going to take action? We should be told!

What did I miss here? Logic?

=LB=