The Evolution of My Opinion by George Ziemann -- May 22, 2008 From time to time, I encounter facts which conflict with my personal Grand Unified Theory of How Everything Doesn't Quite Work Right. Earlier this week, someone set me straight on the legal status of the term "fixed," which I've been harping on lately. Even though I find the court's viewpoint to be ludicrous, it is a fact which cannot be ignored. So here's the deal. Somewhere there is a case wherein an appeals court decided that information in RAM is fixed if it's there long enough to be perceived and copied. This conflicts with everything I know to be true about the meaning of the word "fixed." Ironically, this does not have a negative effect my Grand Unified Theory because this is another prime example of why things don't quite work right. So let's look at where my current opinion of things stand, in consideration of this and other recently revealed truths. Out of 40,000 lawsuits, we are told that only about 100 cases were contested. That means that 39,900 paid the settlement and admitted their guilt, even if they were only 10 or 11 years old. Sure, some of them will tell you that it wasn't worth fighting, or they couldn't afford to fight. Yeah, some of them were dead, but only a few. But the rest of them probably got caught trading RIAA music. Too bad, so sad. It's that other 100 cases that bother me. Even if the number was closer to 500, that's still an incredibly small percentage. It is certainly not beyond the realm of possibility that, even if the RIAA is actually doing an excellent job identifying file sharers, they make one mistake for every 399 they get right. The problem is that if they acknowledge the occasional error, then they are forced to admit their process is not perfect. As a result, those handful of cases wherein the accused maintain their innocence receive the full weight of the RIAA's legal assault. In every instance but one, they have pursued these cases for an extended period of time, only to drop them when the sole option remaining was a trial. The end result is that the innocent take a much greater beating from the RIAA than the guilty. If you take the side of any of those who proclaim their innocence instead of admitting guilt, you are perceived as supporting the activity of which they are accused, as opposed to merely supporting the principle of "innocent until proven guilty." This is mostly because every RIAA case is a carbon copy of the last. If one is determined to be flawed, every other case probably has the same problem, which is why a lot of us spend time looking for technical errors or the bullshit factor in the RIAA's activity. The "making available" theory, which was just illustrated as insufficient to qualify as evidence of infringement in and of itself, has been at the heart of the RIAA's charges. This alone raises their burden of proof. While I oppose the RIAA's lawsuits, I'm tired of trying to come up with technical crap that would defend the file-sharing community at large because if you're still sharing RIAA music, you're obviously an idiot or deluded into thinking this somehow makes you a good guy. I disagree, but I'm not going to expend much more effort to try and convince you. The point is that the RIAA makes mistakes and most of the cases which are being contested may very well simply be a list of those errors. The problem is how to save the innocent while allowing the RIAA to continue to sue the declining fan base of their dwindling number of artists. I am certainly no fan of the RIAA. The lawsuits are destroying the music industry in spite of the file sharers. I also see the decline of the industry as a widening opportunity for music, which has been relegated to the shallow end of the creativity pool for quite some time now. The gatekeepers have limited tastes and they seldom go into the deep waters. If they want to annoy their paying customers with DRM and rootkits and sue everyone else who would listen to their music, I have no problem with that. My Grand Unified Theory is counting on it. But there must be a way to let the innocent off the hook. Continuation -- May 23, 2008 I had to come back to this because there is one last thing that bugs me. Despite the insistence of so many that all of the legal issues are cut-and-dried, and clearly indicate that behavior which is not mentioned is somehow prohibited, Harvard University has publicly suggested to all universities that they tell the RIAA to piss in the wind. Harvard is one of the best law schools in the country. Their refusal to participate in the inquisition would seem to indicate that perhaps there is still something inherently wrong with these cases. After all, it took five years for anyone to point out that "making available" was an invalid accusation. How many people settled based on believing the RIAA's propaganda that this was all they needed? Or because the RIAA simply scared the crap out of them with lies? Or it was just cheaper and easier? While I have no problem with the RIAA continuing to sue people foolish enough to listen to their music, in all fairness, I also have no problem if everyone they sue gets to turn around and get their money back, with punitive damages added. The end result seems to work out the same either way.