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December 29, 2007 04:47 PM UTC

End-of-Year Open Thread

  • 38 Comments
  • by: Colorado Pols

From fine old kegs

From the brim to the dregs

And it poured sweet and clear

It was a very good year…

–Frank Sinatra

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38 thoughts on “End-of-Year Open Thread”

      2. Getting some reaction here but I’m surprised the Edwards supporters aren’t all recomending it to push it to the home page – I think it’s a strong argument for him.

        Then again, I have a horrible ability to predict what gets promoted…

  6. Now the RIAA is going after people who buy a CD and copy it onto their computer.  Not share it, just copy it.

    http://www.washingtonpost.com/…

    I can’t imagine how many times I broke the law when I bought an LP (I’ll explain what that means if you don’t know!) and put it onto the more convenient cassettes.  (Yeah, and I gave some copies away.  Oops.)

    These jerks deserve every dollar lost and losing the marketing model that they are keeping on life support.  

    1. What if you have legally purchased CD’s and you download it to a legal MP3 program ?  I took all of my favorite songs from my CD library this year and put them on I-tunes – then I bought songs from I-tunes to supplement that. I don’t share them with anyone and I-tunes is of course legit.  

      Am I still breaking the law ? If that’s the case then why is Apple airing TV commercials where the guy with all the CD’s strewn accross his living room simplifies his life by converting them all to MP3’s? Is he breaking the law ?  Is Apple breaking the law by encouraging this type of activity ?  

      I guess if you ask the RIAA of course the answer is yes.  Losers.  I bought the song on LP, I bought it on tape, I bought it on CD, and now I bought it as an MP3.  How many more times do I have to buy the fucking song to keep myself from being liable from a lawsuit by some shyster with RIAA ?  You can’t cross the street anymore today in this country without exposing yourself to some sort of horsecrap lawsuit like this – the legal system in this country went off the deep end years ago.

      I have a new acronym I will be using here next year and that is EOR – end of rant.

      So, EOR and Happy New Year ! ( I feel better now)

    2. The article is reporting that it is RIAA’s position that, “it is illegal for someone, who has legally purchased a CD,” to transfer it to his PC:

      According to the reporter, Marc Fisher, the Recording Industry Association of America (RIAA):

      In legal documents in its federal case against Jeffrey Howell . . ., who kept a collection of about 2,000 music recordings on his personal computer, . . . maintains that it is illegal for someone, who has legally purchased a CD to transfer that music into his computer.

      [emphasis in the orig.]  The case is Atlantic Recording Corp. v. Howell.

      In fact, the RIAA Web page concerning piracy does state, in pertinent part:

      [T]here’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns . . . Enjoy the music.

      However, like the Minnesota PGP case, State v. Levie, 695 N.W.2d 619 (Minn.App. 2005), that was widely misrepresented that having encryption s/w was assumed evidence of guilt, the position of RIAA and Atlantic in this case appears to be similarly misconstrued.

      If one actually reads the supplemental brief, Atlantic makes clear that the gravamen of the claims isn’t the possession of a backup copy of legally purchased materials but, rather, the fact that the backup copy resided in a folder share that was utilized by a file-sharing program:

      It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. Virtually all of the sound recordings on Exhibit B are in the “.mp3” format.  Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use.  The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.”  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. Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings from his KaZaA shared folder. Each of the 11 sound recordings on Exhibit A to Plaintiffs’ Complaint were stored in the .mp3 format in the shared folder on Defendant’s computer hard drive, and each of these eleven files were actually disseminated from Defendant’s computer. Each of these actual, unauthorized disseminations ofPlaintiffs’ copyrighted works violates Plaintiffs’ exclusive distribution right under the Copyright Act. In addition, Defendant unlawfully distributed all 54 of Plaintiffs’ Sound Recordings by making unauthorized copies of the recordings available to other KaZaA users for download.

      Id. at 15-16. [citations to the record and authorities omitted; emphasis supplied].

      1. Well, that makes it even weirder cuz, first, the Wapo article I linked to makes no mention of the shared folder issue….probably another modern “journalism” story.

        But if so, is the issue then, that the songs reside on his hard drive or in a specific folder?  Seems rather pertinent.

        And then, what if he never used Kazaa or eMule, but he had parked the songs there?  What if he did use Kazaa but had turned his upload option to “Off?”  What if, like me, I don’t use the Kazaa folder?  

        What if the bleepin’ music industry spent this much time and money to come up with a new business model?  In the long haul they will not win.  

        1. If the music industry spent less time trying to close the barn door after the horse figured out how to open it and more time figuring out how to keep the horse around by treating it nicely, they might come out of this marginally intact.

          In a few years the RIAA is going to become largely irrelevant, as the Internet figures out the best way to promote good songs by self-representing artists.  This will cause a great upheaval in the brick-and-mortar music industry.  In the end the artists and consumers will both win, while the RIAA is still trying to hold on to its glory days of payola, end-cap payments, and stupid lawsuits.



        2. I’m always lurking around to contribute to something interesting other than where Tom Tancredo was recently spotted “dining” at an A&W in Idaho Springs or whether Marilyn Musgrave is still relevant.

          Someone, some long time ago, promised that the “courties” will eventuall “dry up” and go away, if you ignore them for long enough. I took that as invitation to be lifelong Polster, so long as I didn’t get banned like Rio Grande (who, BTW, simply returned under a different cock puppit).

          Anyway, if you read the supplemental brief, it’s pretty clear that there simply would be no case if this guy wasn’t sharing the files with the intent to share files.  “Intent,” I think is the key to this case.  According to the brief he had already shared and intended to share the files.

          But, what about the cases where ignorance commands a higher premium than “intent”?

          A potentially more interesting case just came out of Pennsylvania, where an individual delivered his PC to Circuit City to have a DVD drive installed.  Although he did not ask for any software to be installed, he was informed that installation of the DVD drive would necessarily include testing the DVD drive. While testing, the technician subsequently discovered contraband (“kiddie porn”) and reported it to the police. The police seized the evidence under the plain view doctrine.

          Significantly, the court held that defendant’s aquiencence to the installation of a DVD drive was a de facto aquiescence to the installation of software –whether he knew it or not. The court reasoned that he, therefore, “volitionally relinquished any expectation of privacy in that item by delivering it to Circuit City employees knowing that those employees were going to install and test a DVD drive.”

          Yet, although the court explained that the legal construct revolves around the issue of intent, it rejected defendant’s assertion that he did not intend for Circuit City employees to access his personal video cache any more than he expected them to access his personal financial information or other files.  The court specifically noted (among other things) that defendant “failed to either inquire as to how the DVD drive would be tested or otherwise restrict the employees’ access to his computer files.”

          In another case, Long v. Marubeni America Corporation, 2006 WL 2998671 (S.D.N.Y., October 19, 2006), the court held that both the attorney client and work product privileges were waived by employees using a company computer system to transmit otherwise privileged communications to private counsel, which communications were sent from private password-protected accounts (not from the employer’s email system).   Significantly, a cache of the emails were retained by the company’s system as “temporary internet files.” Because the company could and did obtain these emails by reviewing its own system, the court held that the waiver was created through employees’ failure to maintain the confidentiality of these communications with regard to the company’s electronic communications policy, which policy advised employees not to use the company system for personal purposes and warned that they had no right of privacy in any materials sent over the system. The court reached this result notwithstanding its factual finding that employees were without knowledge that a cache of their email communications had been retained.

          So, the kind of reasoning used in both the PA and NY cases could apply to your question, as well:  If one converts the files to MP3s and then saves those onto a file folder unaware that folder has file-sharing turned on or unaware that his wireless network is unsecure (open to anyone in transmission range) or unaware that a hacker had access to his hard-drive and all contents thereon, is he liable for the unintentional dissemination of the copyrighted songs?  I would say, under these cases, it’s possible   –and, further, that it has nothing to do with whether he converted them to MP3s or simply saved them as uncompressed/unaltered .wav files.  In fact, under these theories, could it be possible that he’d be liable for leaving the original CD in the tray, if he did not take reasonable steps to ensure the security of his computer, network and internet connectivity.  That question – turning on technological ignorance vs. intent to distribute – needs to be addressed.

          1. You don’t need an A1 tech certificate to know that no one, no one, needs to install programs or poke around on your hard drive to install an optical drive.  Not since Windows 95 and real time drivers, at least.

            This is not the first time that I’ve heard of technicians scanning the drive for porn or whatever and then offloading it onto a CD or thumb drive.  

            I’m glad the perve was caught, but the background story just stinks to me.

            Oh yeah, there was the case some years ago when the head of the Harvard Divinity School had the school’s tech guy come to his house for a hard drive upgrade on the university’s computer there. Guess what he found…..

            Resigned in disgrace.  Should also get an S branded on his forehead for Stupid. How can someone be so dumb?  

      2. The RIAA is clearly trying to imply that MP3 is eminently suitable for (they’d like you to read: mostly used for) file transfer by any means.  They specifically include e-mail and unspecified file transfer programs, painting a broad case that any MP3 is a potential violation of their copyright rather than a fair use.

        They similarly imply that by moving the files into a shared folder the copies automatically become unauthorized and distributed.  I have a shared folder on my computer containing my MP3s – I burn them using my Linux box for better fidelity and to avoid the lame copy-protection schemes on some discs…  Does that make me a copyright infringer?  That’s no better than the PGP case.

        Or maybe I’m missing the main thrust of your reply.

        1. The vast bulk of the supplemental brief concerns or alleges that Howell was distributing and intended to distribute copyrighted songs.  Whether he purchased them legally or not is irrelevant, wouldn’t you agree?

          I would agree with you, as I noted above, that converting them to MP3 shouldn’t make or break the case (just as having PGP on your system doesn’t make a case of presumptive guilt).  In the MN PGP case, the presence of PGP was relevant only to the extent that it tended to show that the defendant was computer savvy (not that he had kiddie porn stashed in an inaccessible PGP archive (see Professor Kerr’s Myth of Crypto as a Crime blog post here); and see In re Boucher, 2007 WL 4246473 (Nov. 29, 2007) (surrendering PGP passphrase would be a violation of Fifth Amedment right against self incrimination)).  In fact, the record in the case of the MN defendant showed that he had already taken nude photographs of a minor child and uploaded them to his computer, without regard for the existence of PGP on his PC.

          To get back to this case, converting native format CDs to MP3s may be relevant to the only to the extent that the conversion is probative of an intent to distribute (bearing in mind that disk space is so cheap, there’s no need to use lossy compression algorythms, when you can just save as lossless .wav files).  Whereas, without the proof of dissemination, having the MP3s means nothing (in my view).

          Let’s see how the court rules to see if we’re on to something.

          1. The RIAA is so bloody paranoid / money-grubbing / clueless right now, you might have a point.  To them, MP3s might well be a valid sign of intent to distribute.

            But, going on the Beta vs. VHS ruling, I am the legitimate use that negates the argument they presented (in your quote).  I use MP3s precisely because I don’t have unlimited disk space, and because I use those MP3s in my car instead of carrying a boatload of CDs that might get melted while baking out in the desert Sun – the original CDs serve as my backup, safe at home.  I share my MP3s – intentionally – with myself, and my network is no more protected than any other network with a 128-bit WEP key, MAC lockdown and no SSID broadcast in the middle of a wooded mountain lot (full disclosure here…).

            Unlike some of the pro-sharing crowd, I have no problem with a fair Copyright law.  As a photographer and sometime writer, I believe those protections hold value.  I also have no problem with prosecutions of file sharers, provided the cases are valid and well-argued.  The RIAA has been stepping heavily and reaching with ham hands, and I hope they get stomped in court frequently and often for their mis-steps.

    3. The RIAA keeps encouraging everyone to totally bypass the music industry. The day major artists just sign with iTunes, etc is not far off.

      Firtunately I don’t think the RIAA represents Russian publishers so I can keep copying my CDs to my iPhone.

      – dave

  7. Lynn Bartels in the Rocky Mountain News has a list of the hottest State races coming up in 2008. Senate District 23 tops the list for Dem takeovers.

    Sen. Shawn Mitchell, R-Broomfield, is running for re-election.

    Of note: Democrats believe this race is their best chance of taking out an incumbent, and Mitchell agrees “there’s a big target on my back.” Democrat Joe Whitcomb, a former Army Ranger from Westminster, is challenging Mitchell.

    Kicking of the new year, District Attorney Don Quick and a powerful list of co-hosts are getting set to announce a January 23rd party to help put Joe Whitcomb’s campaign into high gear.

    1. Very interesting article…

      The Ds lead over Rs in the House (40 v 25) seems unassailable, but R’s only have to pick up 3 seats in the Senate to have a majority.  Senate Districts 16 and 19 look like they favor Rs over the incumbent D.

      There’s a high likelihood IMHO that Ds in control of the General Assembly in 2008 will push voters back to the Rs as a result of actions in five areas:

      First, I believe that true believers among the Ds will push for a single-payer health care plan with a whopping $15 billion tax increase over the objections of Ds that favor a more modest plan.  It will be hard to convince voters that the Ds represent the party of fiscal restraint when Colorado voters are presented in November with a $15 billion tax increase to fund a social program.

      Second, I think we’ll see Ritter’s pro-union executive order become the centerpiece of Colorado Ds policy agenda and revival of HB 1072.  I think voters (90+% who are not union members) will rightly see that as political payback to union contributors and react accordingly.

      Third, I suspect there are several global warming bills “warming up” among the legislation to be proposed in 2008.  I also suspect that virtually all of them involve a tax increase or fees of some sort, and that no non-tax proposals (e.g., lower the speed limit) are on the agenda.  

      Fourth, among the biggest contributors to Colorado D campaigns were teachers unions, so I suspect that schools won’t miss a chance to seek more money on top of the C and SB 199 increases they received in 2007.

      Three and four make it much harder to convince Colorado voters that Ds are not the party of Mo’ Taxes.

      Fifth, in spite of campaign rhetoric, Ritter continues a long Colorado tradition of involving mostly folks from the Denver metro area in his administration and ignoring folks from rural areas.  For example, Senate District 16 (Fitzgerald’s district) includes Gilpin county, which represents gaming interests.  You’d think that somebody from Gilpin county would be natural appointee to the Gaming Commission.  But, Ritter made two appointments to the gaming commission in 2007 – one from Broomfield and one from Greenwood Village. Ditto other boards and commissions that are focused on rural areas.  In rural areas, this may translate into hostility to Ds.  

      1. 1) I think this will be a problem for the Dems – not because of the price tag so much as because the proposal out of Ritter’s office appears to be lousy. People want a solution, not a different mess.

        2) No one other than the far right cares about this.

        3) Have to wait & see. Claire Levy’s bill is stupid, but no big deal and unlikely to change many votes.

        4) You could be right here. If it’s tied to true improvements the Dems will make this a plus. If it’s just roll over for the unions then it would give the Repubs an opening.

        5) Not a D vs R issue – as you say everyone does it.

        So (1) and likely (4) – don’t know if that’s enough. I do wish we Dems could stand up to the teacher’s unions and fix the schools, primarily because it such an important issue, but it also would help Dems get elected long term.

      2. I’ll go.  But it isn’t likely to change the outcome of the commission’s decisions, and it may well be that having some distance from the issue isn’t a bad idea.

        As to the other boards and commissions, I’m guessing that many of these positions don’t pay enough to open up the offices to a lot of Western Slope folks.  With that major limitation, it may not be easy to recruit rural members.

  8. You recently had a screed about liberals being “fascists.”  Did you get this bizarre concept from Jonah Goldberg’s book?

    http://www.nytimes.com/2007/12…

    It is really and truly amazing how you far right wingers keep redefining words to fit your agenda.  It’s a real shame that someone like Goldberg actually gets money for diverting the English language for political gain.

    Fascism: “Bundle of sticks.” Mussolini.  Not before, like Goldberg claims.  

    If he wants to say Wilson centralized government control (I would say it was Lincoln), fine.  But don’t a duck a horse.

    1. .

      I’d assumed that Jonah had been reduced to self-publishing the trash he writes.  

      It is illuminating to see that has not happened yet.  

      But I don’t recall our News Man redefining words to fit his agenda.

      In fact, he has cut & pasted from dictionaries to back up his usage.

      .

  10. That the eight users logged on at 8:00am either:

    1) are above the age of 40

    2) could care less about fireworks on New Years, and

    3) drank less than 80% of other Coloradans last night.

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