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Judge Tells RIAA Attorney: "Stop Using Abusive Language, Like Calling File Sharing 'Piracy'"
Thursday, February 05 2004 @ 05:00 AM EST

Since Darl McBride compares SCO to the RIAA, perhaps he should take note of something that just happened in the current appeal of the Morpheus and Grokster case. One of the three judges told the RIAA attorney to stop using "abusive language", such as calling file-trading "piracy".

Here's the exact language the judge used, which Copyfight transcribed and TechDirt brought to my attention (thank you Copyfight for the transcript. EFF has an mp3 of the arguments in court, by the way also. Say, I think Groklaw started something.):

"Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language."

The two sides are arguing the case now, because the RIAA didn't like the lower court's decision that non-centralized P2P software is not illegal:
Judge Sidney R. Thomas, regarded as among the most technologically astute of the 9th Circuit judges, noted that users of the file-swapping networks could continue to trade files, even if Morpheus and Grokster were shut down immediately.

"If that's true, aren't we chasing the wind here?" asked Thomas.

Frackman countered that the Morpheus system would eventually degrade and file-swappers would lose interest. Meanwhile, Carey Ramos, a New York attorney representing songwriters, received a stern rebuke from Noonan to "curtail that use of abusive language," when he began to heatedly criticize the services as "trafficking in pirated goods."
The earlier Sony case came into the argument, because that case stands for the proposition that new technology is not to blame for illegal uses, so long as there are sufficient legal uses to which the technology can be put:
One academic study found that 90 percent of the content exchanged on file-sharing networks is copyrighted, [RIAA lawyer] Frackman noted.

[Judge]Noonan pressed further, asking whether the authorized exchange of 10 percent of an estimated 750 million swapped files -- games, live recordings and public-domain works such as Shakespeare -- met the criteria the Supreme Court set forth in the Betamax case. "That sounds like a lot of non-infringing use to me."
Fred von Lohmann, an attorney for the Electronic Frontier Foundation, pointed out that the software is used to share not only Shakespeare but also licensed games and fans' live concert recordings, with the approval of bands like Phish and the Dave Matthews Band.

I hope the SCOfolk pay attention. Their use of deliberately abusive language is very much the problem. They goad the community by such language on purpose because they want the community to react. Then if some overstressed and indignant kid does, they call up their press contacts and use it as Exhibit A. It's a lot like an analogy Groklaw reader Z sent me today. He compares it to dealing with a spoiled brat who torments and torments you and when you finally hit back, he squeals to his mommy and pretends he never did anything to provoke you, and *you* end up punished. If SCO wants to know why nobody likes them, here is the answer:

The reason Linux enthusiasts are so frustrated . . . about what people like McBride and Enderle are doing is because they commit acts of such unmitigated gall and get away with it, often turning the tables so that the Linux community looks guilty of being the attacker to the unwitting media.

It's much like being a a child riding to school with the neighbor and her brat of a kid. After he punches you in the knee a few times when she's not bothering to pay attention, she suddenly thinks you're a crazy juvenile delinquent when you begin throttling him.
Here is an example of the kind of reporting that makes the blood boil, from the BBC:
But, in the case of the MyDoom computer worm, the motivation seems clearer. It has attacked a company based in Utah called SCO, bringing down its website with a barrage of emails sent from countless computers into which the worm had been insinuated, unbeknownst to the users.

There seems little doubt that SCO was targeted - illegally and unacceptably, lest anyone be in any doubt - because it has enraged many people devoted to the Linux operating system.
Little doubt? Come on, now. There seems every reason to doubt it. Linux geeks don't place keyloggers on your computers to grab your credit cards, or send out ibiblio spam, but professional spammers do, and Russian spammers have done exactly this before, including DDoS-ing companies, though in the past they targeted other companies, like Google, instead of SCO, who didn't put out a press release about it or get pushed off the internet or send a letter to Congress. The Moscow Times says MyDoom did come from Russia. They dealt with it like Microsoft has, with professional skill, without being knocked of the Internet, and went on about their business. In fairness, the B version was apparently less effective.

The good thing about the media is they do sometimes print letters they receive in reaction to their stories. Evans was in the World Trade Center when it was hit on 9/11, by the way, so it's only natural he would feel strongly about any kind of illegal behavior to make a point. That likely influenced him to be inclined to believe the SCO FUD. I'm sure some friendly, fact-filled letters would be helpful in providing the BBC what they need to understand the story a bit better. And the BBC itself uses Linux. Groklaw reader Nick Bridge remembered the 1999 article in Linux Planet.

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