Reply #38: Relaying Jim's response for you, AP [View All]

[Melinda]

As you know, Jim March is not a member of DU and can't directly reply here -- Jim's response as posted for you on BBV.org:


Quoting:
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The urge is strong to use the letter to make declarations of your political reasons for doing what you do, but this could compromise your legal position seriously and irrevocably.

The letter that that Ohio ISP sent...that was a brilliant letter. They cited the law, divulged no compromising information, and place the ball firmly back in Diebold's court.

March could end up hurting himself more than helping himself with something like this.
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Here's the situation:

By default, a company owns and has copyrights to this sort of thing. The burden of proof will be on ME to show that they are distributed under "fair use" and/or that the Diebold copyrights are no good.

The DMCA "counter-notification rules" under 17 USC 512(g)(3) *force* me to paint a giant target on my back in order to keep those files up: I have to state an address where I can be served, I have to list a phone number, I have to agree to operate under the jurisdiction of the local (to ME, thank God!) Federal Court, etc.

That means that this letter, no matter what I write, will be "exhibit A" if Diebold is stupid enough to file suit.

The other requirement in 17 USC 512(g)(3) is that I must have a good-faith *belief* that I'm acting legally. Not just morally, but legally. In this case, that means claiming that the works in question are "misidentified" (to use a term in the DMCA itself) as holding valid copyrights and/or not subject to fair use.

I really believe that's the case.

Now, I have some small experience with the subject of "reasonable belief of lawfulness" being used to avoid criminal penalties.

My former roommate hasn't paid US income tax in 28 years. He also has a letter from a Federal attorney saying he cannot be criminally charged for that. How did he get that letter? By writing to the IRS multiple times asking for explanations as to the definition of "income" under IRS regulations, and a host of other technical questions...the lack of answers to which has him convinced that the IRS is as crooked as Diebold.

Now, I'm not going to debate the point, it's not my area of expertise. He's basically following the concepts found at http://www.givemeliberty.org - go check it out if interested.

Recently, an airline pilot in Tennessee won an IRS criminal case on the same basis.

(There are other tax protest/resistance arguments that are seriously loony, such as the ones based on the 14th Amendment. I disagree with those rather strongly, I have some knowledge of the 14th Amendment myself. See also: http://www.equalccw.com/practicalrace.html for one of the two most scholarly pieces I've written.)

Upshot: in order to convict you of a crime, they have to show a "deliberate violation of law". If you can REASONABLY show why you're not in violation, it becomes impossible to convict. There ARE exceptions, gun laws being a glaring one...per the Calif Supremes and some Fed cases, "intent" isn't a factor if your shotgun barrel is fractionally shorter than 18" for example. Or drug laws, same deal.

But copyright law is tailor-made for this "intent defense", because the entire area of "fair use" is nebulous to start with. Read case law and commentaries on the "fair use" doctrine, and you start seeing references to "we know it when we see it" referring to "fair use" - including judges using that exact phrase from the bench. And what THAT means is, Diebold isn't going to be able to keep the actual content of the alleged copywritten material out of court. I'll be able to show that content to both judge and jury.

Which means they're HOSED! Toast. Stick a fork in 'em, they're DONE.

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Jim