First, as to anonymity, why do you want to know my name, but not that of other commentators, such as “Joe Schmoe”, “Boring”, and “B”? Could it be that you’d rather try to discredit me by association than deal with the facts I present?

Your identity and associations matter because it clearly influences what you are saying. If I was concerned about their biases, I would ask them. I’ll note that you still refuse to say anything more about who you are. What’s wrong with saying who employs you?

To find both Grokster and Napster liable for contributory copyright infringement, the Supreme Court and 9th Circuit had to find that Grokster/Napster users were engaging in direct copyright infringement. As demonstrated by the portions of the decisons I cited in my previous two posts, both courts explicitly found that P2P downloading constituted copyright infringement, and thus that Grokster and Napster could be liable for contributory infringement.

Again, the focus in both cases was much more on the sharing aspects (uploading) rather than downloading.

I again would ask why, if downloading is so illegal, why no one has been sued for downloading? I think it has something to do with the fact that it would be a much more difficult case, and the last thing you and your friends want is a case on the books where downloading is found not to be illegal. If there were a trial on such a matter, any competent lawyer would rip apart any comparison to “theft” and show why it’s not just different, but almost antithetical to the concept of “stealing.”

The more important point, however, is that no matter what the courts have said, if you cannot understand the difference between infringement and stealing, then you will never be able to understand what’s happening in the marketplace your industry is dealing with. It’s why you’re losing this battle when you could be winning it.

I think it is you and your compatriots who are having trouble in this debate – at least when the debate is in public rather than among yourselves.

Yes, that’s why I put my name on everything I write and am willing to stand up and debate it in public. It’s why I appear on any panel I’m invited to discussing this topic, especially when it includes folks from your industry. This isn’t an echo chamber. I debate this every day with folks who disagree with me and I want them to come here and I want them to read this. I’m thrilled to debate this with people like yourself. What about you? You hide behind anonymity and refuse to say who you are or who pays your paycheck. You focus on a tiny point of law, rather than the big picture or the trends that impact the industry that employs you.

But don’t make me out to be sheltered from real discussion on this. I debate this every day. So, come on. Come out in public. Let’s debate this. Any place you’d like. I have no problem debating the salient points here and I would enjoy a chance to discuss it with you and those who pay your salary. Because the problem is that you’ve lost this battle in the minds of everyone outside of the industry. You’ve had every chance in the world to embrace an opportunity, and you’ve squandered it at every chance.

You’ve labeled your best customers as criminals.

You’ve told them it’s a crime to share and promote your content.

You’ve stifled new and innovative technologies.

You’ve prevented offerings that increase the value of your content from having any chance to do so.

You’ve shrunk the value of your own market and then blamed it on your customers.

And you say that I’m the one who’s having trouble in this debate. I don’t think so. You’ve already lost and the scary thing is that even though you’ve already lost, you want to go back and argue about the rules of the game.

Your use of legally false, factually incorrect, and common sense-impaired arguments to try to make copyright theft seem a less serious problem robs you of all credibility in the courts and among policymakers.

I am afraid that you have lost touch with common sense. Read the original story by Sherman and Bainwol again. Read the responses to that article. No one, not a single person, buys the ridiculous arguments they put forth. Hell, even you are unable to defend them other than to nitpick about some minor point in legal cases. You don’t respond to any of the bigger issues — because you can’t. In any other industry in the world, you make money by making a product better for your customers by providing them what they want.

Only in your skewed world do you think you make things better by limiting your customers and treating them as criminals.

Instead of fighting over semantics, maybe it’s time to recognize that no one believes the fake world that you’ve built. People don’t believe that listening and sharing the music they like is “theft.” They know it’s not theft because no one has lost anything. They don’t believe that circumventing copy protection should be against the law if they’re just trying to listen to the song they legally purchased on another device. They don’t think that your bosses should be allowed to open up security holes in their computers because they can’t come to terms with a more modern business model.

They understand the nature of freedom and liberty, and when Thomas Jefferson says:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

they understand that it refers equally to any such content. There is a world of opportunity (and profits and happy customers) in embracing giving people what they want and what they know makes sense.

And instead, you’re arguing semantics.

I’m afraid that it’s you who has lost credibility in the eyes of your very customers. You’ve already lost this battle. Arguing the fine print doesn’t change any of that.