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Originally Posted by TheDoc
Hahaha, that some of the best bullshit I've ever heard... no, that would be your standard of made up shit, however the courts see it differently.
The 1600 songs was kicked because they couldn't prove she downloaded/uploaded, traded them - it's in the article. It had nothing to do with fair use and everything to do with a lack of them proving it. They could prove the 24 other songs were pirated.
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how exactly did they know which 1700 songs to accuse her of sharing if they had no proof of what songs she shared.
this women was one of the people who got the mass mailed pay up or else letters
the Capital hires people to use KAZAA to download songs FROM the people they send the letter, they log the downloads, and after confirming that the songs is really the song it titled they send the demand letter with the times, dates, and songs that are infringed.
That is Proof the songs was traded
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The mistake was a blanket lawsuit without proof of every infringement, but not a mistake enough for her to be able to come back after them. The 2nd case was appeal, SHE repeated it and got nailed again
And no, you haven't read the transcripts...or you would know why the reduction in songs happened.
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the defence lost the first appeal, when they argued that none of the evidence (entrapment defence) could be used because the proof of the infringement would never exist if the agent of the copyright holder had not initiated the request for the content.
they won on the second (make available does not automatically = infringement)
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Michael J. Davis of Federal District Court, ruled in the industry's favor on a hotly contested technical question, saying that for jurors to find her liable, the record labels did not have to prove that songs on Ms. Thomas's computer had actually been transmitted to others online. Rather, the act of making them available could be viewed as infringement, the judge ruled.
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that why she got convicted for all 1700 the first time.
this was the mistake in ruling the judge made, and it was overturned (taking the make available precedent with it ) to get the second trial.
when they tried again they could only get a conviction for the 24 songs out of the 1700.
basically the defence argued that she should not be held wilfully responsible for sharing that KAZAA did automatically just because she choose to use the default install which auto indexed her music folder
the record company counter this arguement for only 24 songs by proving that the file in question were from Kazaa and not her own ripping of the music.
in essense, she was wilfully liable because she had no right to have the songs in her my music folder.
Since the only "right" to have the songs in her my music folder was the fair use of format shifting fair use is at the core of the case.
If format shifting is extended to use kazaa as a network aware mp3 ripper, then those 24 songs have as much right to be there as the other 1666 songs she was aquited of.