Heh – one clarification: I always try to be civil – I meant it’s especially convenient for me to converse via email, rather than in the comments.

Brad, how is this trying to have it both ways? You seem to prove my point. To make his comment seem barely in context, you basically had to rewrite his paragraph. You left out (at least) two important sentences at the beginning:

“[The current secondary liability rule] seems to permit the distribution of ‘piracy machines’ designed to make infringement easy, tempting, and automatic. Even Harvard’s Berkman Center for Internet and Society suggests that this is happening.”

How do the quotes from Berkman say that ‘piracy machines’ make infringement (a) easy, (b) tempting, and (c) automatic? Does the brief say that the software was specifically DESIGNED to do so, as Hatch alleges? When looked at in the context of the brief, is that what the brief is about? Is it about how KaZaA basically tricks everyone into sharing files? No, the brief is just noting this as one possibility for why some users were sharing.

You also seem to tacitly, though not completely, understand that the brief is not a Berkman position per se, and is in fact a fraction of the sum total the Center has written about P2P. To quote that as if Berkman Center agrees with his analysis of P2P is really silly. Note the “Even” that starts the third sentence – to mean, it seems, “even these people who are usually against us agree with us here.” That’s just a rhetorical trick. Again, the brief might agree on the very narrow quoted points but not on the bigger point that Hatch is making in that paragraph or in the rest of the floor statement.

I could go on if you’d like me to. Again, I’d prefer email, and I promise to be entirely civil – it’s a bit more convenient for me right now (on dial-up, one phone line, easier to just check one spot than 5).

And, again, I speak for myself only, not the Berkman Center or any other institution.

Derek, I don’t get how, rhetorically, you can expect to have it both ways. The brief effectively says, “yeah someone probably violated copyright, and if it was in fact the defendant, he’s nuts not to settle. But here are various reasons why it might not be the defendant.” One of those reasons is that it was the software. Hatch quotes this and attributes it to a Berkman publication. How on earth is that out of context? I mean, maybe we should add context… New Hatch snippet:

In an amicus brief, Berkman suggested that Alaujan might not be entirely at fault for copyright infringement because… ‘it can be extremely difficult for a non-expert computer user to shut down’ the viral redistribution that can otherwise automatically make the user an international distributor of infringing works.

Someone caused the file to be available for download, which constitutes textbook copyright infringement. The brief did not argue that the bits might have spontaneously appeared there as a result of gamma rays or the like and Alaujan was just seriously unlucky.

If Berkman says that Alaujan might not have intentionally caused the file to be available and they identify UI complexity as a potential explanation, how is that not a position put forth by Berkman?

P.S. I did reply to your last post on the thread on Copyfight a couple days ago, to which Ernest replied on “The Importance Of”. Perhaps I should have e-mailed you — my bad for not. I do prefer now to conduct these kinds of conversations in public after Cory went off-the-reservation in a private e-mail exchange with me a few months ago. Never posted it, but it taught me a valuable lesson.