“Down and “Up” Are Not the Same Thing

If you have been following the Verizon/RIAA case at all, you know it has something to do with an individual, branded a heinous pirate by the RIAA, “downloading” 600 songs – in a single day!! Sounds pretty egregious right? How greedy and rapacious to snurfle down 600 songs in a single 24-hour period. Imagine what the fiend has done over the course of a year – the mind boggles!

A small problem: the individual in question didn’t “download” anything, he (or she) had 600 songs on his computer available for uploading. Whether there is a legal difference in this case or not, there is a huge psychological difference between these two situations – one that favors the RIAA. Time to set the record straight:

So you’d expect that in a high-profile case like this — one that conceivably will end up on the doorstep of the Supreme Court — the judge in the case, U.S. District Judge John D. Bates, would make sure he got the basic facts of the case straight.

You’d be wrong.

Yes, when Judge Bates issued a ruling in favor of the RIAA on Jan. 21, here’s how he described a key action on the day last summer when the RIAA served its subpoena on Verizon: “Along with the subpoena,” wrote Bates on page 6 of his opinion, “RIAA provided Verizon with a list of more than 600 files (predominantly individual songs, most by well-known artists) allegedly downloaded by the user in one day.”

….Got that straight? Not downloading, but uploading. And not even uploading — simply ready to upload. The RIAA made no allegation as to how many copies of the files at issue were actually made from the files at issue.

Compounding Judge Bates’ error, numerous news outlets repeated the “downloaded 600 files in a day” accusation. People who should have known better. Institutions you would think get tech. Places like CNBC. CNN. Reuters. The Washington Post. The San Jose Mercury News. The Atlanta Journal-Constitution. Newsday. And, oh yeah, TheStreet.com.

….Separately, says Verizon Communications general counsel Sarah Deutsch, the confusion is emblematic of larger problems with Judge Bates’ ruling, which Verizon is appealing. “It’s evidence that they’re not really paying attention to the technical issues at stake,” she says. “It’s just another thing the court got wrong in its decision.” [George Mannes in TheStreet.com]

Fortunately, we quoted AP on the matter and got it right. We – and AP – rule.